Xian Xin Xia v. United States

SUMMARY ORDER

Xian Xin Xia petitions for review of the BIA’s denial of his motion to reopen his removal proceedings. We presume the parties’ familiarity with the underlying facts and procedural history of the case.

This Court reviews the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). A motion to reopen must be filed with the BIA within ninety days of the final administrative decision, unless it is based on a change in country conditions under 8 C.F.R. §§ 1003.2(c)(2), 1003.2(c)(3)(ii). Here Xia has alleged no change in country conditions. Instead, he simply reiterates the facts in his affidavit filed with the underlying motion. Therefore, the BIA did not abuse its discretion in finding that Xia did not qualify for the regulatory exception to the filing deadline and in denying Xia’s motion to reopen as untimely. See 8 C.F.R. § 1003.2(c)(3)(ii).

To the extent that Xia requests this Court to review the BIA’s decision not to reopen his proceedings sua sponte, this Court lacks jurisdiction to review that decision. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006). For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).