Filed: Sep. 30, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3100-ag You v. Holder BIA A073 050 842 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM
Summary: 09-3100-ag You v. Holder BIA A073 050 842 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMM..
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09-3100-ag
You v. Holder
BIA
A073 050 842
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 ______________________________________
13
14 BI JIAN YOU,
15 Petitioner,
16 09-3100-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR.,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Tina Y. Howe, New York, New York
24
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Michelle
28 Gordon Latour, Assistant Director;
29 Cindy S. Ferrier, Senior Litigation
30 Counsel, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
34
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Bi Jian You, a native and citizen of the People’s
6 Republic of China, seeks review of a June 26, 2009, order of
7 the BIA denying his motion to reopen. In re Bi Jian You,
8 No. A073 050 842 (B.I.A. June 26, 2009). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the BIA’s denial of You’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien is limited to a single motion to
14 reopen that is filed within 90 days of the final
15 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
16 § 1003.2(c)(2). This is You’s third motion to reopen, filed
17 more than eight years after the BIA’s removal order. We
18 find no abuse of discretion.
19 You’s third motion sought reopening to apply for
20 adjustment of status; however, eligibility for adjustment of
21 status is not an exception to the applicable time limitation
22 on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C);
23 8 C.F.R. § 1003.2(c)(3)(ii); see also Matter of Yauri, 25 I.
2
1 & N. Dec. 103, 105 (BIA 2009) (emphasizing “that untimely
2 motions to reopen to pursue an application for adjustment of
3 status . . . do not fall within any of the statutory or
4 regulatory exceptions to the time limits for motions to
5 reopen before the Board”). Accordingly, You was implicitly
6 invoking the BIA’s authority to reopen his proceedings sua
7 sponte. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
8 2009). The BIA’s determination as to whether it will
9 exercise its sua sponte authority is entirely discretionary
10 and thus beyond the scope of our jurisdiction. See Ali,
448
11 F.3d at 518. Although we retain jurisdiction to review the
12 BIA’s finding that an alien is ineligible for adjustment of
13 status, see
Mahmood, 570 F.3d at 469; Aslam v. Mukasey, 537
14 F.3d 110, 115 (2d Cir. 2008), there is no indication that
15 the BIA misperceived the law in declining to reopen You’s
16 proceedings. To the contrary, the BIA denied You’s time-
17 and-number-barred motion because it found that a favorable
18 exercise of its discretion was not warranted, rather than
19 because it found You ineligible to adjust status. See Ali,
20 448 F.3d at 517.
21 Finally, we lack jurisdiction to consider You’s due
22 process challenge to the BIA’s 2003 order, because he failed
23 to file a petition for review of that order with this Court.
3
1 See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed
2 with an appropriate court of appeals . . . shall be the sole
3 and exclusive means for judicial review of an order of
4 removal . . . .”); see also Stone v. INS, 514 U.S. 386, 405-
5 06 (1995) (providing that a petition for review challenges
6 only the order(s) from which it was timely filed).
7 For the foregoing reasons, the petition for review is
8 DISMISSED in part and DENIED in part. As we have completed
9 our review, any pending motion for a stay of removal in this
10 petition is DISMISSED as moot. Any pending request for oral
11 argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
4
