17-3654
    Zhang v. Barr
                                                                                   BIA
                                                                           A200 922 480
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 1st day of November, two thousand nineteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RAYMOND J. LOHIER, JR.,
             RICHARD J. SULLIVAN,
                  Circuit Judges.
    _____________________________________

    FULI ZHANG,
             Petitioner,

                    v.                                           17-3654
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Stuart Altman, New York, NY.

    FOR RESPONDENT:                   Joseph H. Hunt, Assistant
                                      Attorney General; M. Jocelyn Lopez
                                      Wright, Senior Litigation Counsel;
                                      Sara J. Bayram, Trial Attorney,
                                      Office of Immigration Litigation,
                                      United States Department of
                                      Justice, Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED.

    Petitioner Fuli Zhang petitions for review of the BIA’s

denial of his motion to reopen his asylum proceedings sua

sponte.      We   generally   lack       jurisdiction    to   review    such

decisions.    Ali v. Gonzales, 

, 518 (2d Cir. 2006).

Although we have jurisdiction to remand in certain limited

circumstances, such as where the BIA “declined to exercise

its sua sponte authority because it misperceived the legal

background and thought, incorrectly, that a reopening would

necessarily fail,” Mahmood v. Holder, 

, 469 (2d

Cir. 2009), Zhang does not here invoke that or any other

exception to the rule adopted in Ali.              Instead, Zhang urges

us to reconsider Ali in light of the Supreme Court’s decision

in Kucana v. Holder, 

(2010).           In Kucana, however,

the Supreme Court “express[ed] no opinion on whether federal

courts may review the [BIA’s] decision not to reopen removal

proceedings sua sponte.”       

n.18.              In

addition,    we   have   previously       held   that   Kucana   does   not

preclude a conclusion, like the one we reached in Ali, that


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agency decisions made discretionary by regulation (rather

than by statute) may nevertheless be unreviewable because

they are “committed to agency discretion by law” within the

meaning   of   the   Administrative    Procedure   Act,   5    U.S.C.

§ 701(a)(2).    See Vela-Estrada v. Lynch, 

, 72 (2d

Cir. 2016) (per curiam).       We are therefore unable to conclude

that Kucana casts sufficient doubt on our holding in Ali to

warrant reconsideration of that decision by a panel of this

Court.    See, e.g., In re Zarnel, 

, 168 (2d Cir.

2010).     Accordingly,   we    lack   jurisdiction   over    Zhang’s

petition for review.

    For the foregoing reasons, the petition for review is

DISMISSED.

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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