         09-2178-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A072 483 260
                            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 27 th day of August,           two thousand ten.
 5
 6       PRESENT:
 7                        DENNIS JACOBS,
 8                              Chief Judge,
 9                        JON O. NEWMAN,
10                        DENNY CHIN,
11                             Circuit Judges.
12
13
14       KON DANG CHEN, a.k.a. KONG DENG
15       CHEN,
16                Petitioner,
17                                                              09-2178-ag
18                         v.                                   NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23
24
25       FOR PETITIONER:               Pro se.
26
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General, Civil Division; Anh-Thu P.
30                                     Mai-Windle, Senior Litigation
31                                     Counsel; Imran R. Zaidi, Attorney,
32                                     Office of Immigration Litigation,
33                                     Civil Division, United States
34                                     Department of Justice, Washington,
35                                     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 DISMISSED.

5        Petitioner Kon Dang Chen, a native and citizen of the

6    People’s Republic of China, seeks review of an April 22,

7    2009, order of the BIA denying his motion to reopen.       In re

8    Kon Dang Chen, No. A072 483 260 (B.I.A. Apr. 22, 2009).       We

9    assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       We review the BIA’s denial of Chen’s motion to reopen

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

13   (2d Cir. 2006).    An alien may only file one motion to reopen

14   and must do so within 90 days of the final administrative

15   decision.    8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

16   The BIA did not abuse its discretion in denying the motion

17   to reopen.

18       Chen’s motion, which was indisputably untimely, sought

19   reopening to apply for adjustment of status.    However,

20   eligibility for adjustment of status is not an exception to

21   the applicable time limitation on motions to reopen.

22   See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii);



                                    2
1    see also Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA

2    2009) (emphasizing “that untimely motions to reopen to

3    pursue an application for adjustment of status . . . do not

4    fall within any of the statutory or regulatory exceptions to

5    the time limits for motions to reopen before the Board”).

6    Thus, to the extent Chen sought reopening to pursue such

7    relief, he was necessarily invoking the BIA’s authority to

8    reopen his proceedings sua sponte.   See Mahmood v. Holder,

9    570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s

10   untimely motion to reopen was not excused by any regulatory

11   exception, his motion to reopen could only be considered

12   upon exercise of the Agency’s sua sponte authority.”);

13   8 C.F.R. § 1003.2(a).

14       The BIA’s decision whether to exercise its sua sponte

15   authority is entirely discretionary and thus beyond the

16   scope of our jurisdiction.   See Ali, 448 F.3d at 518.     In

17   Mahmood v. Holder, we found that “where the Agency may have

18   declined to exercise its sua sponte authority because it

19   misperceived the legal background and thought, incorrectly,

20   that a reopening would necessarily fail, remand to the

21   Agency for reconsideration in view of the correct law is

22   appropriate.”   Mahmood, 570 F.3d at 469; see also Aslam v.



                                   3
1    Mukasey, 537 F.3d 110, 115 (2d Cir. 2008) (drawing the

2    distinction between discretionary and eligibility

3    determinations and finding that as a statutory matter we

4    have jurisdiction to review the latter but not the former).

5    However, there is no indication in this case that the BIA

6    misperceived the law in declining to reopen Chen’s

7    proceedings.     To the contrary, the BIA found that a

8    favorable exercise of its discretion was not warranted

9    because Chen “only became potentially eligible for

10   adjustment of status by virtue of his marriage over 6 years

11   after the final order was entered in his case.”

12       For the foregoing reasons, the petition for review is

13   DISMISSED.     As we have completed our review, any pending

14   motion for a stay of removal in this petition is DISMISSED

15   as moot.     Any pending request for oral argument in this

16   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
23




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