Chen v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2174
JIN BIN CHEN,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A77-993-955)
Submitted: May 4, 2005 Decided: May 20, 2005
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Douglas B. Payne, New York, New York, for Petitioner. Peter D.
Keisler, Assistant Attorney General, David M. McConnell, Deputy
Director, Kurt B. Larson, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jin Bin Chen, a native and citizen of the People’s
Republic of China, petitions for review of the Board of Immigration
Appeals’ (Board) order denying his motion for reconsideration of
the Board’s denial of his requests for asylum, withholding of
removal, and protection under the Convention Against Torture.
It is undisputed that Chen’s motion to reopen was
untimely. See 8 C.F.R. § 1003.2(b)(2) (2004). However, under 8
C.F.R. § 1003.2(a) (2004), the Board has authority to reopen or
reconsider a case in which it issued a final decision on its own
motion at any time. Chen seeks review of the Board’s decision
declining to sua sponte exercise its authority under 8 C.F.R.
§ 1003.2(a) (2004) to reopen or reconsider his case. We find that
this court is without jurisdiction to review this claim. See
Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir. 2003);
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003);
Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Luis v. INS,
196 F.3d 36, 40-41 (1st Cir. 1999); Heckler v. Chaney, 470 U.S.
821, 831-33 (1985).
We also note that Chen’s attacks to the underlying
decision of the immigration judge, as affirmed by the Board without
opinion, are not properly before the court because he did not file
a timely petition for review of the Board’s decision. See 8 U.S.C.
- 2 -
§ 1252(b)(1) (2000); Stone v. INS, 514 U.S. 386, 405 (1995) (noting
the time limit is “mandatory and jurisdictional”).
Accordingly, we deny Chen’s petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
- 3 -