         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
