     04-1389-ag
     Chen v. Gonzales
 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2006
 6
 7
 8       (Argued: June 15, 2007               Decided: June 25, 2007)
 9
10                             Docket No. 04-1389-ag
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   ZHAO QUAN CHEN,
15
16                        Petitioner,
17
18                 -v.-
19
20   ALBERTO GONZALES, Attorney General,*
21
22                        Respondent.
23
24   - - - - - - - - - - - - - - - - - - - -x
25
26          Before:           JACOBS, Chief Judge, SOTOMAYOR, and
27                            WESLEY, Circuit Judges.
28
29          Petition for review of a final decision and order of

30   the Board of Immigration Appeals denying petitioner’s motion

31   for reconsideration of the denial of petitioner’s motion to

32   reopen.

33          Petition denied.



            *
            Pursuant to Federal Rule of Appellate Procedure
     43(c)(2), Attorney General Alberto Gonzales is substituted
     for his predecessor, Attorney General John Ashcroft, as
     respondent.
 1                              Norman Kwai Wing Wong, New York,
 2                              NY, for Petitioner.
 3
 4                              MICHAEL J. EDNEY, United States
 5                              Department of Justice, Office of
 6                              Legal Counsel (Fred T. Hinrichs,
 7                              Assistant United States
 8                              Attorney, Donald J. DeGabrielle,
 9                              Jr., United States Attorney for
10                              the Southern District of Texas,
11                              Houston, TX, on the brief ), for
12                              Respondent.
13
14   PER CURIAM:
15
16       Zhao Quan Chen, a native and citizen of China, seeks

17   review of a March 5, 2004 order of the Board of Immigration

18   Appeals (“BIA”) denying his motion to reconsider the BIA’s

19   January 6, 2004 denial of the motion to reopen his

20   immigration proceedings.

21       This Court earlier denied Chen’s petition for review

22   from the BIA’s November 9, 1999 decision affirming the IJ’s

23   denial of a motion to reopen proceedings in which a

24   deportation order was issued against Chen in absentia after

25   Chen failed to appear at his hearing.    See Zhao Quan Chen v.

26   INS, 85 F. App’x 223 (2d Cir. 2003).    On October 9, 2003,

27   soon before this Court issued its decision, Chen filed a

28   motion to reopen with the BIA, on the premise that, after

29   the BIA’s 1999 decision, the INS approved an I-140 petition

30   filed by Chen’s employer on his behalf.    The BIA denied

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1    Chen’s motion to reopen as untimely because it was filed

2    more than 90 days after the issuance of the BIA’s final

3    decision in 1999.   See 8 C.F.R. § 1003.2(c)(2).    Chen argued

4    in his motion to reconsider--and argues again here--in the

5    alternative (1) that his pending petition for review before

6    this Court rendered the BIA’s decision non-final, and

7    therefore the 90-day period had not yet begun to run; (2)

8    that his pending petition for review before this Court

9    equitably tolled the 90-day period; or (3) that the BIA

10   should have granted the motion on humanitarian grounds

11   notwithstanding its untimeliness.

12       The BIA’s denial of a motion to reopen or reconsider is

13   reviewed for abuse of discretion.   See Jin Ming Liu v.

14   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).   The BIA abuses

15   its discretion if it acts arbitrarily or capriciously, that

16   is, when it provides no rational explanation, departs from

17   established policies without explanation, or justifies its

18   decision with only conclusory statements.   See Kaur v. BIA,

19   413 F.3d 232, 234 (2d Cir. 2005) (per curiam).     Here the BIA

20   acted well within its discretion.

21       With some exceptions not relevant here, a motion to

22   reopen “shall be filed within 90 days of the date of entry


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1    of a final administrative order of removal.”     8 U.S.C. §

2    1229a(c)(7)(C)(i).   See also 8 C.F.R. § 1003.2(c)(2).

3    Chen’s motion to reopen was therefore late--by approximately

4    three years and eight months.

5        Chen’s argument that the BIA’s decision was not “final”

6    until this Court had reviewed it is unavailing.     Courts have

7    long recognized that the filing of a motion to reopen before

8    the BIA does not impact the finality of a removal order, see

9    Stone v. INS, 514 U.S. 386, 405-06 (1995), and that

10   therefore the limitations period for a petition for review

11   of a “final order of removal” under 8 U.S.C. § 1252(b)(1)

12   begins to run immediately upon the order’s issuance by the

13   BIA, see Kaur, 413 F.3d at 233 (citing Stone, 514 U.S. at

14   405-06).   Likewise, we see no reason why the filing of a

15   petition for review should affect finality.    Indeed, this

16   Court has jurisdiction to review only petitions for review

17   of final orders of removal.     See 8 U.S.C. § 1252(d).   If

18   Chen were correct that an order of the BIA is not final

19   until this Court has issued its decision, then we would have

20   no jurisdiction over a petition for review until we had

21   already decided it; this cannot be the case.

22       Just as meritless is Chen’s argument that the


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1    limitations period for a motion to reopen should have been

2    equitably tolled until this Court had issued its decision on

3    his petition.    The statutory scheme governing our review is

4    inconsistent with the notion that a petition for review

5    tolls any limitations period applicable to motions before

6    the BIA.    That is because “any review sought of a motion to

7    reopen or reconsider [a removal order] shall be consolidated

8    with the review of the order.”      8 U.S.C. § 1252(b)(6).

9    Congress thus contemplated that a motion to reopen or

10   reconsider might be filed concurrently with a petition for

11   review.    See Randhawa v. Gonzales, 474 F.3d 918, 921 (6th

12   Cir. 2007).     If the filing of a petition for review obviated

13   any need to file a motion to reopen in a timely fashion, we

14   would likely never invoke § 1252(b)(6) to simultaneously

15   review a removal order and the denial of a motion to reopen,

16   and all petitioners whose first petition for review was

17   unsuccessful would invariably appear a second time (which,

18   as a practical matter, might be years later) with arguments

19   similar or identical to those advanced by the previous

20   petition for review.    Such a result, which is inefficient

21   and ripe for abuse, would be at odds with the spirit of §

22   1252(b)(6).   See Randhawa, 474 F.3d at 922.    Thus, “only [a


                                     5
1    no-tolling] rule gives meaning to [§ 1252(b)(6)].”   Stone,

2    514 U.S. at 395.

3        In any event, Chen adduced no evidence in the BIA that

4    he exercised due diligence during the relevant period, see

5    Jin Bo Zhao v. INS, 452 F.3d 154, 157 (2d Cir. 2006), and he

6    provided no explanation as to why his pending petition for

7    review impaired his ability to file a motion to reopen.     And

8    any such explanation would have been disingenuous since Chen

9    actually filed his motion to reopen before this Court issued

10   any decision on his petition for review.

11       As to Chen’s argument that the BIA should have reopened

12   the case for humanitarian reasons notwithstanding the

13   motion’s untimeliness, we lack jurisdiction to review the

14   BIA’s refusal to exercise its discretionary power to reopen

15   sua sponte under 8 C.F.R. § 1003.2(a).   Ali v. Gonzales, 448

16   F.3d 515, 518 (2d Cir. 2006).

17       For the reasons set forth above, the petition is hereby

18   DENIED.   Chen’s motion for a stay of removal is DISMISSED as

19   moot.




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