14-2435
    Zheng v. Lynch
                                                                                       BIA
                                                                               A098 288 963


                          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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         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
    21st day of July, two thousand fifteen.

    PRESENT:
             RALPH K. WINTER,
             GUIDO CALABRESI,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    FENG ZHENG,
             Petitioner,

                     v.                                              14-2435
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Jay Ho Lee, New York, New York.


    * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
    General Loretta E. Lynch is automatically substituted for former Attorney
    General Eric H. Holder, Jr., as the Respondent in this case.
FOR RESPONDENT:            Benjamin C. Mizer, Acting Assistant
                           Attorney General; Christopher C.
                           Fuler, Deputy Chief, Alison Marie
                           Igoe, Senior Counsel for National
                           Security, National Security Unit,
                           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 Feng Zheng, a native and citizen of the People’s

Republic of China, seeks review of a June 12, 2014, decision

of the BIA denying her motion to reconsider.   In re Feng Zheng,

No. A098 288 963 (B.I.A. June 12, 2014).   We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    A motion to reconsider must be filed within 30 days of the

challenged decision and must specify an error of law or fact

in that decision.   8 C.F.R. § 1003.2(b)(2).     Because Zheng’s

2014 motion to reconsider was filed more than seven years after

the 2006 decision she asked the BIA to reconsider, the BIA did

not abuse its discretion in denying the motion as untimely.

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Zhao Quan Chen v. Gonzales, 

, 154 (2d Cir. 2007)

(per curiam).     However, Zheng does not challenge the BIA’s

denial of her motion to reconsider as untimely; instead, she

argues that the BIA abused its discretion in declining to

exercise its sua sponte authority to reconsider.

      We lack jurisdiction to review the BIA’s determination that

a case does not warrant the exercise of its sua sponte authority.

See Ali v. Gonzales, 

, 518 (2d Cir. 2006).

Nonetheless, where the BIA may have declined to exercise its

sua   sponte   authority   “because   it   misperceived   the   legal

background,”    we   retain   jurisdiction     and   remand   may   be

appropriate for consideration of the correct law.         Mahmood v.

Holder, 

, 469 (2d Cir. 2009).

      Contrary to Zheng’s contention, the BIA did not misperceive

the legal background when it declined to reconsider its prior

decision based on Zheng’s argument that Negusie v. Holder, 

(2009), affected the analysis of whether she was

subject to the persecutor bar to asylum.         Negusie was issued

in 2009, three years after the BIA’s decision and five years

before Zheng moved to reconsider.          Furthermore, the Supreme

Court remanded Negusie to the BIA for a determination in the
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first instance of whether there was a duress exception to the

persecutor bar.   

.    Zheng does not

argue that she was under duress when, as a nurse in China, she

assisted in forced sterilizations and abortions.     Indeed, the

record shows that Zheng’s actions were voluntary: she testified

that she assisted in sterilizations and abortions because it

was her job to do so, and an immigration judge concluded that

Zheng did not qualify for asylum “because she voluntarily

participated in the persecution of others.”      Accordingly, we

lack jurisdiction to review Zheng’s petition.      See 

; cf. 

.

    For the foregoing reasons, the petition for review is

DISMISSED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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