         13-2154
         Jiang v. Holder
                                                                                         BIA
                                                                                 A077 655 757
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                ROBERT D. SACK,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       DIAN EN JIANG,
14                Petitioner,
15
16                         v.                                      13-2154
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Theodore N. Cox, New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
26                                      General; Blair T. O’Connor,
27                                      Assistant Director; Holly M. Smith,
28                                      Senior Litigation Counsel, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 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 DENIED.

 5       Dian En Jiang, a native and citizen of China, seeks

 6   review of the May 17, 2013, order of the BIA denying his

 7   motion to reconsider the BIA’s February 15, 2013, denial of

 8   reopening.   In re Dian En Jiang, No. A077 655 757 (B.I.A.

 9   May 17, 2013).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11       As Jiang petitions for review of only the BIA’s denial

12   of his motion for reconsideration, having voluntarily

13   dismissed his petition for review of the underlying denial

14   of reopening, we are precluded from considering the merits

15   of the underlying motion to reopen.    Jin Ming Liu v.

16   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam).     We

17   have reviewed the denial of Jiang’s motion to reconsider for

18   abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517 (2d

19   Cir. 2006) (per curiam).

20       A motion to reconsider must “specify the errors of law

21   or fact in the previous order and shall be supported by

22   pertinent authority.”   8 U.S.C. § 1229a(c)(6); see also 8


                                    2
 1   C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of

 2   Justice, 265 F.3d 83, 90 (2d Cir. 2001).    Here, Jiang merely

 3   reiterated his previously rejected arguments, rather than

 4   specify errors in the prior decision.    The BIA therefore did

 5   not abuse its discretion in denying reconsideration.       See

 6   Jin Ming Liu, 439 F.3d at 111.

 7       Even if he had articulated some new argument, the BIA

 8   properly found no error in its prior denial of sua sponte

 9   reopening.   Jiang argued that new law invalidated the

10   frivolousness finding, which was preventing him from

11   adjusting status through his U.S.-citizen wife.    See 8

12   U.S.C. § 1158(d)(6) (precluding any immigration benefits if

13   application deemed frivolous).    A fundamental change in law

14   that renders the movant newly eligible for relief merits

15   exercise of the BIA’s authority to reopen sua sponte.       In re

16   G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999).    We retain

17   jurisdiction to determine whether the BIA has misperceived a

18   movant’s eligibility for relief in denying sua sponte

19   reopening, and by extension whether a motion for

20   reconsideration identified such a misperception.    See

21   Mahmood v. Holder, 570 F.3d 466, 469-71 (2d Cir. 2009).

22   Accordingly, we may address whether the decisions Jiang


                                   3
 1   cites, In re Y-L-, 24 I. & N. Dec. 151 (BIA 2007), and In re

 2   B-Y-, 25 I. & N. Dec. 236 (BIA 2010), established a

 3   fundamental change.     We conclude, as the BIA did, that the

 4   decisions established only an incremental, not a

 5   fundamental, change in the law governing frivolousness

 6   findings because they set forth new procedural guidelines,

 7   but did not alter the applicable regulations.     See In re Y-

 8   L-, 24 I. & N. Dec. at 158-61; In re B-Y-, 25 I. & N. Dec.

 9   at 240.    Accordingly, the BIA did not abuse its discretion

10   in denying reconsideration of its prior denial of reopening.

11       For the foregoing reasons, the petition for review is

12   DENIED.    As we have completed our review, any stay of removal

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.     Any pending request for oral argument

16   in this petition is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

18   34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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