     15-632
     Chen v. Lynch
                                                                                       BIA
                                                                               A089 920 857

                          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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   25th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   MIN JUN CHEN,
14            Petitioner,
15
16                   v.                                              15-632
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Norman Kwai Wing Wong, New York,
24                                       New York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John W.
28                                       Blakeley, Assistant Director; W.
29                                       Daniel Shieh, Trial Attorney, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 is

4    DENIED.

5          Petitioner Min Jun Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a February 13, 2015,

7    decision of the BIA denying his motion to reconsider.        In re

8    Min Jun Chen, No. A089 920 857 (B.I.A. Feb. 13, 2015).    We assume

9    the   parties’   familiarity   with   the   underlying   facts   and

10   procedural history in this case.

11         As an initial matter, because Chen has timely petitioned

12   for review of the denial of a motion to reconsider, but not from

13   the underlying decision for which reconsideration is sought,

14   we review only the denial of his motion to reconsider.       See Ke

15   Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.

16   2001).    We review the denial of a motion to reconsider for abuse

17   of discretion.    See Jian Hui Shao v. Mukasey, 546 F.3d 138, 173

18   (2d Cir. 2008).

19         The BIA did not abuse its discretion in concluding that Chen

20   failed to identify any error of law or fact in its decision

21   denying his motion to reopen.     See 8 U.S.C. § 1229a(c)(6)(C);
                                      2
1    8 C.F.R. § 1003.2(b)(1); see also Jian Hui Shao, 546 F.3d at

2    173.     As the BIA determined, Chen was ineligible for a

3    provisional unlawful presence waiver because he is subject to

4    a final order of removal, see 8 C.F.R. § 212.7(e)(4)(vi), and

5    he is ineligible to adjust status given his unlawful presence,

6    see 8 U.S.C. § 1255(a).        Accordingly, the BIA did not err in

7    declining     to     reopen   Chen’s     proceedings.    See       In   re

8    Velarde-Pacheco, 23 I. & N. Dec. 253, 257 (B.I.A. 2002)

9    (providing that motions to reopen may be denied if it is

10   “determine[d] that a respondent’s visa petition is frivolous

11   or that adjustment would be denied in any event”).

12          Chen argues that the BIA’s decision declining to reopen his

13   proceedings violates his rights to equal protection.           He notes

14   that the BIA grants reopening to admissible aliens who are

15   eligible    to     adjust   status   pending   adjudication   of    their

16   applications to adjust status, and that he is likewise eligible

17   to adjust status based on his marriage to a U.S. citizen

18   (although he must first seek a waiver of his inadmissibility

19   caused by his unlawful entry and apply for adjustment from

20   abroad).


                                          3
1          “To successfully assert an equal protection challenge,

2    petitioners must first establish that the two classes at issue

3    are similarly situated.       ‘[T]he government can treat persons

4    differently if they are not similarly situated.’”           Yuen Jin v.

5    Mukasey,    538    F.3d    143,   158    (2d   Cir.     2008)    (quoting

6    Jankowski-Burczyk v. INS, 291 F.3d 172, 176 (2d Cir. 2002)).

7    The groups Chen discusses are not similarly situated.                  One

8    group consists of aliens who were lawfully admitted to the

9    United States and thus are eligible to adjust to lawful

10   permanent resident (“LPR”) status while remaining in the

11   country.    The other group consists of aliens who entered the

12   United States unlawfully and thus are not eligible to adjust

13   to LPR status unless they are granted a discretionary waiver

14   of inadmissibility and travel abroad for consular processing.

15   See id. (“Aliens who disregard a final removal order and remain

16   in the country illegally are not similarly situated to aliens

17   who have complied with a final order but subsequently reenter

18   the     United    States   and    try    to    seek    relief.”);      cf.

19   Jankowski-Burczyk, 291 F.3d at 178 (“[S]ince the INA creates

20   separate classifications for LPRs and non-LPRs, and treats each

21   class    differently   throughout,      LPRs   and    non-LPRs   are   not
                                        4
1    similarly situated, and different treatment of them by Congress

2    does not violate the equal protection component of the Due

3    Process Clause.”).   Accordingly, Chen’s equal protection claim

4    fails.

5        For the foregoing reasons, the petition for review is

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

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

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

9    is DENIED as moot.    Any pending request for oral argument in

10   this petition is DENIED in accordance with Federal Rule of

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O=Hagan Wolfe, Clerk




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