           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 15, 2008
                                     No. 07-60206
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

SHENGPING GAO,

                                                  Petitioner,

v.

MICHAEL B. MUKASEY, U S ATTORNEY GENERAL,

                                                  Respondent.


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A95 880 764


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Shengping Gao, a native and citizen of China, entered the United States
on May 23, 2002, using a fraudulent passport. Gao has petitioned for review of
the denial of her application for adjustment of her status based on her marriage
to a United States citizen and the dismissal of her motion to reopen her removal
proceedings.
       Gao contends that the BIA erred in determining that she was ineligible for
adjustment of status. “The status of an alien who was inspected and admitted

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-60206

or paroled into the United States . . . may be adjusted by the Attorney General,
in his discretion and under such regulations as he may prescribe, to that of an
alien lawfully admitted for permanent residence.” 8 U.S.C. § 1255(a) (emphasis
supplied). “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien,
the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). The BIA
determined that Gao was not eligible for adjustment of status because she had
not been “admitted” under the statutory definition of that term. The BIA
determined, “Because the respondent used a false passport to gain admission
into the United States, her entry was not lawful and thus she was not ‘admitted’
for purposes of [§ 1255(a)].” Gao has not shown that the BIA has construed
§§ 1255(a) and 1101(a)(13)(A) impermissibly. See White v. INS, 75 F.3d 213, 215
(5th Cir. 1996).
      Gao contends that her attorneys rendered ineffective assistance in failing
to assert an asylum claim on her behalf and that her right to due process was
violated because she was not provided with a Chinese language interpreter.
These issues were first asserted in Gao’s motion to reopen. The BIA denied the
motion to reopen as untimely filed.
      We review the BIA’s denial of a motion to reopen “under a highly
deferential abuse of discretion standard.” Manzano-Garcia v. Gonzales, 413 F.3d
462, 469 (5th Cir. 2005). A motion to reopen “must be filed no later than 90 days
after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(1)&(2). There are a few
exceptions to the time limitations on motions to reopen, none of which apply in
this case. See § 1003.2(c)(3)(i)-(iv). In addition, the BIA has authority to sua
sponte reopen a case in which it has rendered a decision. See § 1003.2(a). “A
denial of an untimely motion to reopen has the same legal effect as a failure to
exercise sua sponte authority to reopen a case.” Enriquez-Alvarado v. Ashcroft,
371 F.3d 246, 249 n.3 (5th Cir. 2004) (emphasis omitted).

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                                  No. 07-60206

      The Supreme Court has stated that an appellate court may not review an
agency’s discretionary determination where there is “no meaningful standard
against which to judge the agency’s exercise of discretion.” Heckler v. Chaney,
470 U.S. 821, 830 (1985). “The Code of Federal Regulations suggests that no
meaningful standard exists against which to judge [the BIA’s] decision to
exercise sua sponte authority to reopen deportation proceedings.” Enriquez-
Alvarado, 371 F.3d at 249 (interpreting similar provision applicable to the
authority of immigration judges to reopen proceeding, 8 C.F.R. § 1003.23(b)); see
also Ohiri v. Gonzales, 233 F. App’x 354, 356 (5th Cir. 2007) (following Enriquez-
Alvardo in § 1003.2(a) case)). For that reason, we lack jurisdiction to review the
denial of Gao’s motion to reopen. See Enriquez-Alvarado, 371 F.3d at 249.
      Because Gao has not briefed the question whether the BIA abused its
discretion in denying the motion to reopen as untimely, we have not considered
whether the BIA abused its discretion in determining, in the alternative, that
the period for filing a timely motion to reopen should not be equitably tolled and
that Gao’s ineffective assistance claim was without merit. See Rodriguez v. INS,
9 F.3d 408, 414 n.15 (5th Cir. 1993).
      The petition for review of the application for adjustment of status is
DENIED. The petition for review of the motion to reopen the deportation
proceedings is DISMISSED.




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