         09-4136-ag
         Lin v. Holder
                                                                                       BIA
                                                                               A095 381 951
                          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 4 th day of October,           two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       ______________________________________
13
14       ZHONGYU LIN,
15                Petitioner,
16                                                              09-4136-ag
17                       v.                                     NAC
18
19       UNITED STATES DEPARTMENT OF JUSTICE and
20       ERIC H. HOLDER, JR., U.S. ATTORNEY
21       GENERAL,
22                Respondents.
23       ______________________________________
24
25       FOR PETITIONER:               Dehai Zhang, Flushing, New York.
26
27
28       FOR RESPONDENTS:              Tony West, Assistant Attorney
29                                     General, Civil Division; Michelle
30                                     Gorden Latour, Assistant Director;
31                                     Jessica E. Sherman, Trial Attorney,
1                           Office of Immigration Litigation,
2                           Civil Division, United States
3                           Department of Justice, Washington,
4                           DC
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is DENIED in part and DISMISSED in part.

10       Zhongyu Lin, a native and citizen of the People’s

11   Republic of China, seeks review of a September 23, 2009,

12   order of the BIA denying her motion to reopen.     In re

13   Zhongyu Lin, No. A095 381 951 (B.I.A. Sept. 23, 2009).       We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history of the case.

16       We review the BIA’s denial of Lin’s motion to reopen

17   for abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517

18   (2d Cir. 2006).   According to Lin, 8 U.S.C. § 1229a(c)

19   (7)(C)(ii) implies that the timely filing of her first

20   motion to reopen preserved her right to file a later motion

21   to reopen, regardless of any time and numerical limitations

22   that would otherwise apply.   To the contrary, an alien may

23   only file a single motion to reopen and must do so within

24   ninety days of the final administrative decision.

25   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).     Lin’s


                                   2
1    August 2009 motion to reopen was filed seven years after the

2    IJ’s June 2002 in absentia removal order became final.

3        Lin argues that the BIA abused its discretion in

4    declining to excuse the ninety-day filing deadline for her

5    motion to reopen.   However, eligibility to adjust status

6    does not constitute an exception to the applicable time

7    limitation on motions to reopen.   See 8 U.S.C.

8    § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter

9    of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing

10   “that untimely motions to reopen to pursue an application

11   for adjustment of status . . . do not fall within any of the

12   statutory or regulatory exceptions to the time limits for

13   motions to reopen before the Board”). Moreover, because

14   Lin’s motion was untimely, her argument that reopening was

15   warranted under In re Velarde-Pacheco, necessarily fails.

16   See 23 I. & N. Dec. 253, 256 (BIA 2002)(permitting the

17   agency to reopen an alien’s removal proceedings to allow

18   them to apply to adjust status based on marriage to a U.S.-

19   citizen only when the motion to reopen was “timely filed”).

20   The BIA therefore did not abuse its discretion in denying

21   Lin’s untimely motion to reopen, and we deny the petition

22   for review to this extent.   See Ali, 448 F.3d at 517.



                                   3
1        Finally, we lack jurisdiction to consider Lin’s

2    argument that the BIA erroneously determined that she failed

3    to demonstrate exceptional circumstances warranting

4    reopening her proceedings sua sponte.     The BIA’s

5    determination as to whether it will exercise its sua sponte

6    authority is entirely discretionary and thus beyond the

7    scope of our jurisdiction.    See id. at 518.   Although remand

8    may be appropriate “where the Agency may have declined to

9    exercise its sua sponte authority because it misperceived

10   the legal background and thought, incorrectly, that a

11   reopening would necessarily fail,”     Mahmood v. Holder, 570

12   F.3d 466, 469 (2d Cir. 2009), there is no indication here

13   that the BIA misperceived the law in declining to reopen

14   proceedings sua sponte.

15       For the foregoing reasons, the petition for review is

16   DENIED in part and DISMISSED in part.     As we have completed

17   our review, any pending motion for a stay of removal in this

18   petition is DISMISSED as moot.     Any pending request for oral

19   argument in this petition is DENIED in accordance with

20   Federal Rule of Appellate Procedure 34(a)(2) and Second

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25




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