12-1371
    Lin v. Holder
                                                                                    BIA
                                                                            A077 007 747
                     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 20th day of November, two thousand thirteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    BI YING LIN,
             Petitioner,

                    v.                                        12-1371
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                Mouren Wu, New York, NY.

    FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
                                   Attorney General; Ernesto H. Molina,
                                   Jr., Assistant Director; Dana M.
                                   Camilleri, Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, D.C.
    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 Bi Ying Lin, a native and citizen of the

People’s Republic of China, seeks review of the March 9,

2012, decision of the BIA denying her motion to reopen. We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    An alien seeking to reopen proceedings may file one

motion to reopen no later than 90 days after the date on

which the final administrative decision was rendered.

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

There is no dispute that Lin’s March 2011 motion was

untimely and number-barred, as it was her third motion to

reopen, filed more than eight years after the BIA’s final

administrative decision. Although these time and number

limitations do not apply to a motion to reopen if it is

“based on changed circumstances arising in the country of

nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available

and could not have been discovered or presented at the

previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also



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8 U.S.C. § 1229a(c)(7)(C)(ii), in her most recent motion to

reopen, Lin did not assert a material change in country

conditions in China, but rather requested that the BIA

exercise its discretion to reopen proceedings sua sponte.

    The BIA declined to reopen sua sponte and we lack

jurisdiction to review that decision, as it is “entirely

discretionary.”     See Ali v. Gonzales, 

, 518 (2d

Cir. 2006).     Although we may remand “where the [BIA] may

have 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), there

is no indication that the BIA misperceived the law in this

case.

    We have reviewed Lin’s other arguments and they do not

alter our conclusion that we lack jurisdiction to hear her

petition. For the foregoing reasons, the petition for review

is DISMISSED.     Petitioner’s pending motion for a stay of

removal is DENIED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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