     Case: 12-60843       Document: 00512328286           Page: 1    Date Filed: 08/01/2013




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

                                                                              FILED
                                                                            August 1, 2013
                                     No. 12-60843
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

KONG FANG NI,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A087 573 420


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Kong Fang Ni, a native and citizen of the People’s Republic of China, was
ordered removed from the United States in July 2010 because she entered the
United States without valid entry documents. In January 2011, Ni filed a
second motion to reopen the removal proceedings, wherein she sought leave to
reinstate her previously withdrawn application for asylum, withholding of
removal, and relief under the Convention Against Torture. The immigration

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 12-60843

judge (IJ) denied her motion on the grounds that it was barred by time and
number limitations and by regulation.          Ni appealed to the Board of
Immigration Appeals (BIA), but she did not challenge the IJ’s denial of her
second motion to reopen; she instead argued for the first time that the
proceedings should be remanded based on ineffective assistance by her prior
counsel. The BIA dismissed Ni’s appeal, finding that it lacked jurisdiction to
consider her motion to remand as it was untimely. Ni now seeks review of that
decision.
      This court reviews legal issues de novo, but gives significant deference to
the BIA’s interpretation of its own regulations. Ovalles v. Holder, 577 F.3d 288,
296 (5th Cir. 2009). This court will uphold the BIA’s interpretation of its own
regulations “unless it is plainly erroneous or inconsistent with regulation.”
Wang v. Ashcroft, 260 F.3d 448, 451 (5th Cir. 2001).
      When Ni asked the BIA to remand the removal proceedings, she was
subject to a final order of removal. Her motion to remand, which was in
substance a motion to reopen, was not timely filed. As such, the BIA correctly
determined that it lacked jurisdiction to entertain the motion. See In re L-V-K,
22 I. & N. Dec. 976, 979-80 (BIA 1999); Wang, 260 F.3d at 451-52; see also In re
Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992).
      Nevertheless, Ni argues that the BIA could have reopened the
proceedings by exercising its sua sponte authority to reopen set forth in 8
C.F.R. § 1003.2(a) and by equitably tolling the time and number limitations.
The BIA’s sua sponte authority to reopen is not unlimited. See Ovalles, 577
F.3d at 296. Section 1003.2(a) gives the BIA authority to reopen proceedings


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                               No. 12-60843

sua sponte in cases “in which it has rendered a decision.” Here, Ni had never
appeared before the BIA before the instant proceeding. Thus, the BIA had no
sua sponte authority to reopen the proceedings.
     Ni’s petition for review is DENIED.




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