         10-1163-ag
         Chai v. Holder
                                                                                       BIA
                                                                               A076 506 690
                               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 10th day of August, two thousand eleven.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                       Circuit Judges.
11       _______________________________________
12
13       TIAN MING CHAI,
14                Petitioner,
15
16                        v.                                    10-1163-ag
17                                                              NAC
18
19       UNITED STATES DEPARTMENT OF JUSTICE,
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondents.
23       _______________________________________
24
25       FOR PETITIONER:                Yee Ling Poon, Deborah Niedermeyer,
26                                      New York, New York.
27
28       FOR RESPONDENTS:               Tony West, Assistant Attorney
29                                      General; James A. Hunolt, Senior
30                                      Litigation Counsel; Christopher P.
31                                      McGreal, Trial Attorney, Office of
 1                             Immigration Litigation, Civil
 2                             Division, United States Department
 3                             of Justice, Washington, D.C.

 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DISMISSED in part and DENIED in part.

 5       Tian Ming Chai, a native and citizen of the People’s

 6   Republic of China, seeks review of a March 4, 2010, order of

 7   the BIA denying his motion to reopen his removal

 8   proceedings.     In re Tian Ming Chai, No. A076 506 690 (B.I.A.

 9   Mar. 4, 2010).    We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

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

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

13   (2d Cir. 2006).    Because Chai’s motion was untimely, as it

14   was filed approximately five years after the final

15   administrative decision, 8 C.F.R. § 1003.2(c)(2), reopening

16   could be granted only upon a showing of changed country

17   conditions or through the BIA’s exercise of its authority to

18   reopen sua sponte, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

19   § 1003.2(a).     Because Chai does not challenge the BIA’s

20   finding that he failed to demonstrate a change in country


                                     2
 1   conditions, the only issue before us is whether the BIA

 2   erred in declining to reopen his case sua sponte.

 3       We lack jurisdiction to review the BIA’s decision not

 4   to reopen Chai’s case sua sponte under 8 C.F.R. § 1003.2(a),

 5   because that decision was “entirely discretionary.”     Ali,

 6   448 F.3d at 518.   Whereas in Mahmood v. Holder, 570 F.3d

 7   466, 471 (2d Cir. 2009), we vacated and remanded the

 8   agency’s decision because it was based on an erroneous legal

 9   assumption, here, the BIA declined to exercise its

10   discretion to reopen Chai’s case because he failed to

11   demonstrate exceptional circumstances. See Guyadin v.

12   Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006) (emphasizing

13   that it is not possible to create jurisdiction over a

14   discretionary determination by simply framing a challenge to

15   such a determination as a legal question).   Because the

16   BIA’s conclusion that there were no exceptional

17   circumstances was based on its factual findings regarding

18   the country conditions, there is no basis for this Court to

19   exercise jurisdiction.   Cf. Mahmood, 570 F.3d at    471.

20       To the extent Chai challenges the BIA’s review of the

21   record, we have jurisdiction to consider that argument

22   because it is a question of law.   See Luna v. Holder, 637


                                   3
 1   F.3d 85, 92 (2d Cir. 2011).    Given the BIA’s explicit

 2   references to the documentation submitted with the motion to

 3   reopen, there is no basis to find that it ignored any

 4   evidence.   See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

 5   Cir. 2006) (holding that the BIA is not required to

 6   “expressly parse or refute on the record each individual

 7   argument or piece of evidence offered by the petitioner” as

 8   long as it “has given reasoned consideration to the

 9   petition, and made adequate findings”); Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)

11   (presuming that the agency “has taken into account all of

12   the evidence before [it], unless the record compellingly

13   suggests otherwise”).

14       For the foregoing reasons, the petition for review is

15   DISMISSED in part and DENIED in part.

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19
20




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