     16-1137
     Dong v. Sessions
                                                                                       BIA
                                                                               A077 993 626

                             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   28th day of July, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   LI PING DONG, AKA SANDY MIKYUNG
14   CHO,
15
16                            Petitioner,
17
18                      v.                                           16-1137
19                                                                   NAC
20
21   JEFFERSON B. SESSIONS III, UNITED
22   STATES ATTORNEY GENERAL,
23
24                 Respondent.
25   _____________________________________
26
27
28   FOR PETITIONER:                        Meer M. M. Rahman, New York, NY.
29
1    FOR RESPONDENT:             Chad A. Readler, Acting Assistant
2                                Attorney    General;   Anthony    P.
3                                Nicastro, Assistant Director; D.
4                                Nicholas Harling, Trial Attorney,
5                                Office of Immigration Litigation,
6                                United States Department of Justice,
7                                Washington, DC.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   DISMISSED.

13       Petitioner Li Ping Dong, a native and citizen of the

14   People’s Republic of China, seeks review of a March 17, 2016,

15   decision of the BIA denying her motion to reopen.     In re Li Ping

16   Dong, No. A077 993 626 (B.I.A. Mar. 17, 2016).       We assume the

17   parties’ familiarity with the underlying facts and procedural

18   history in this case.

19       “We review the denial of motions to reopen immigration

20   proceedings for abuse of discretion.”       Ali v. Gonzales, 448

21   F.3d 515, 517 (2d Cir. 2006).     The BIA denied reopening on two

22   grounds.     Dong does not dispute that her motion—her second

23   request to reopen filed twelve years after her removal order—was

24   untimely   and   number-barred.       8 U.S.C.   § 1229a(c)(7)(A),

25   (C)(i); 8 C.F.R. § 1003.2(c)(2).      Nor does she dispute that an
                                       2
1    application for adjustment of status does not fall into any

2    exception to those limits.        See Matter of Yauri, 25 I. & N. Dec.

3    103, 105 (B.I.A. 2009) (“[E]mphasiz[ing] that untimely motions

4    to   reopen    to   pursue   an   application    for   adjustment    of

5    status . . . do not fall within any of the statutory or

6    regulatory exceptions to the time limits for motions to reopen

7    before the Board.”).

8           Thus,   Dong’s   request    necessarily   invoked     the   BIA’s

9    authority to reopen her proceedings sua sponte.            See Mahmood

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

11   untimely motion to reopen was not excused by any regulatory

12   exception, his motion to reopen could only be considered upon

13   exercise of the Agency’s sua sponte authority.”); see also 8

14   C.F.R. § 1003.2(a).       The BIA’s determination as to whether it

15   will    exercise    its    sua    sponte   authority   “is    entirely

16   discretionary” and thus beyond the scope of our jurisdiction.

17   See Ali, 448 F.3d at 518.         Although we may remand if the BIA

18   declines to reopen sua sponte “because it misperceived the legal

19   background and thought, incorrectly, that a reopening would

20   necessarily fail,” Mahmood, 570 F.3d at 469, the BIA’s decision

21   does not reflect any such misperception.
                                         3
1        Petitioner’s      reliance   on      Sheng   Gao   Ni    v.    Board   of

2    Immigration Appeals, 520 F.3d 125 (2d Cir. 2008), is misplaced.

3    In Sheng Gao Ni, we remanded because the BIA incorrectly assumed

4    that the petitioners sought to have the BIA adjudicate their

5    adjustment   of    status   applications,        rather     than   continue

6    proceedings.      520 F.3d at 130.       Dong’s adjustment application

7    has already been denied, and thus there was no basis for a

8    continuance.      Moreover, here, the BIA did not conclude that it

9    lacked jurisdiction; it simply found that Dong did not establish

10   exceptional circumstances that would warrant reopening.                Dong

11   does not identify any basis to challenge this dispositive

12   determination.

13       For the foregoing reasons, the petition for review is

14   DISMISSED.

15                                    FOR THE COURT:
16                                    Catherine O’Hagan Wolfe, Clerk




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