         08-4906-ag
         Shih v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A072 054 355

                                   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 11 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, Jr.,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                         Circuit Judges.
11       _______________________________________
12
13       JI-CAN SHIH, ALSO KNOWN AS JI CAN CHI,
14                Petitioner,
15
16                            v.                                08-4906-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL, UNITED STATES
20       DEPARTMENT OF HOMELAND SECURITY,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:                Yee Ling Poon, New York, New York.

                          1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as a respondent in this case.
1    FOR RESPONDENTS:    Michael F. Hertz, Acting Assistant
2                        Attorney General, Civil Division, Susan
3                        K. Houser, Senior Litigation Counsel,
4                        Gary J. Newkirk, Trial Attorney, Office
5                        of Immigration Litigation, U.S.
6                        Department of Justice, Washington, D.C.

1
2        UPON DUE CONSIDERATION of this petition for review of a

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

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

5    review is DENIED.

6        Ji-Can Shih, a native and citizen of China, seeks

7    review of the September 16, 2008, order of the BIA: (1)

8    affirming the May 5, 2006, decision of Immigration Judge

9    (“IJ”) Robert D. Weisel; and (2) denying his motion to

10   remand.    In re Ji-Can Shih, No. A72 054 355 (B.I.A. Sept.

11   16, 2008) aff’g No. A72 054 355 (Immig. Ct. N.Y. City May 5,

12   2006).    We assume the parties’ familiarity with the

13   underlying facts and procedural history of the case.

14       When, as here, an alien files a motion that seeks both

15   rescission of an in absentia exclusion order, as well as

16   reopening of exclusion proceedings based on new evidence,

17   the Court treats the motion as comprising distinct motions

18   to rescind and to reopen. See Alrefae v. Chertoff, 471 F.3d

19   353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462


                                    2
1    F.3d 150, 152 n.1 (2d Cir. 2006).     We address each motion in

2    turn.

3            A.   Motion to Rescind

4          When an IJ orders an alien excluded in absentia, there

5    is no time limit on filing a motion to rescind if the alien

6    demonstrates “reasonable cause” for her failure to appear.

7    See 8 C.F.R. § 1003.23(b)(4)(iii)(B) (providing that, “a

8    motion to reopen exclusion hearings on the basis that the

9    [IJ] improperly entered an order of exclusion in absentia

10   must be supported by evidence that the alien had reasonable

11   cause for [her] failure to appear”); Matter of N-B-, 22 I &

12   N Dec. 590 (BIA 1999); Matter of Ruiz, 20 I & N Dec. 91, 92-

13   93.     The BIA did not err in finding that Shih failed to

14   demonstrate “reasonable cause” for his failure to appear at

15   his November 1992 merits hearing.     See 8 C.F.R.

16   § 1003.23(b)(4)(iii)(B).     As the BIA noted, Shih conceded

17   that he received written notice of the hearing date.     He

18   argued, however, that rescission was appropriate because the

19   travel agency he had retained to help him had not verbally

20   advised him of the hearing date.     The BIA acted well within

21   its discretion in concluding that this did not constitute

22   reasonable cause for his failure to appear.


                                      3
1        B.   Motion to Reopen

2        The BIA also did not abuse its discretion in denying

3    Shih’s motion to reopen.     The regulations provide that “[a]

4    party may file only one motion to reopen deportation or

5    exclusion proceedings . . . and that motion must be filed no

6    later than 90 days after the date on which the final

7    administrative decision was rendered in the proceeding

8    sought to be reopened, or on or before September 30, 1996,

9    whichever is later.”     8 C.F.R. § 1003.2(c)(2).

10   Indisputably, Shih’s May 2005 motion was untimely because he

11   filed it more than twelve years after the IJ’s November 1992

12   in absentia order.     However, the time limitation does not

13   apply when the alien can establish materially “changed

14   country conditions arising in the country of nationality.”

15   8 C.F.R. § 1003.2(c)(3)(ii).

16       Shih based his motion to reopen before the IJ on

17   changed circumstances, i.e., the birth of his two U.S.-

18   citizen children and his wife’s imputed political opinion.

19   In addition to finding that Shih had not established changed

20   country conditions, the BIA found that even if he had, it

21   would deny his motion as a matter of discretion.     See INS v.

22   Abudu, 485 U.S. 94, 105 (1988) (finding that “in cases in


                                     4
1    which the ultimate grant of relief is discretionary,” the

2    agency may jump ahead and determine that the movant would

3    not be entitled to discretionary relief); see also 8 C.F.R.

4    § 1003.2(a) ( “The Board has discretion to deny a motion to

5    reopen even if the party moving has made out a prima facie

6    case for relief.”); 8 C.F.R. § 1003.23(b)(3).     The BIA based

7    its discretionary denial on: (1) Shih’s statement during his

8    credible fear interview that he had killed someone in

9    China; 2 (2) the fact that Shih had “purposefully” ignored

10   the voluntary departure order issued in connection with his

11   deportation proceedings under another alien number; and (3)

12   Shih’s failure to exercise due diligence in pursuing his

13   “immigration status.”     Despite Shih’s arguments to the

14   contrary, we find no abuse of discretion in the agency’s

15   findings.

16       C.       Motion to Remand

17       In addition to his motion to reopen and rescind, Shih

18   filed a motion to remand based on: (1) his potential

19   eligibility to adjust his status in light of his wife’s



              2
             Although Shih later recanted that statement, the
       BIA reasonably found that he had either killed someone or
       lied and said that he did in order to obtain an
       immigration benefit--i.e., asylum.

                                     5
1    pending adjustment application; and (2) his argument that

2    the IJ had denied his motion to reopen without allowing

3    sufficient time for further briefing.       As to the former,

4    because the ability to adjust one’s status is not an

5    exception to the statutory filing deadline for a motion to

6    reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii), an alien seeking

7    reopening on that basis in an untimely motion to reopen is

8    invoking the BIA’s authority to reopen proceedings sua

9    sponte, 8 C.F.R. § 1003.2(a).       The BIA’s exercise of its sua

10   sponte authority is a matter entirely within its discretion

11   and, thus, beyond the scope of our jurisdiction.       See Azmond

12   Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).       As to

13   the latter argument, Shih is correct that the BIA ignored

14   it.    However, even if this was an error, it was a harmless

15   one.    Cf. Dedji v. Mukasey, 525 F.3d 187, 192 (2d Cir. 2008)

16   (holding that “IJs are accorded wide latitude in calendar

17   management,” and the Court “will not micromanage their

18   scheduling decisions any more than when [it] review[s] such

19   decisions by district judges”).       Because Shih offered no

20   proper basis for reopening, the IJ’s refusal to allow

21   further briefing was permissible, and remand on this basis

22   would be futile.    See Xiao Ji Chen v. U.S. Dep’t of Justice,


                                     6
1    471 F.3d 315, 335 (2d Cir. 2006) (finding that remand would

2    be futile if it can be confidently predict that the IJ would

3    reach the same decision were the case remanded).

4        Accordingly, the BIA did not abuse its discretion in

5    denying his motion to remand.       Li Yong Cao v. Dep't of

6    Justice, 421 F.3d 149, 151 (2d Cir. 2005); see Kaur v. BIA,

7    413 F.3d 232, 233 (2d Cir. 2005).

8        For the foregoing reasons, the petition for review is

9    DENIED.   As we have completed our review, any stay of

10   removal that the Court previously granted in this petition

11   is VACATED, and any pending motion for a stay of removal in

12   this petition is DISMISSED as moot . Any pending request for

13   oral argument in this petition is DENIED in accordance with

14   Federal Rule of Appellate Procedure 34(a)(2), and Second

15   Circuit Local Rule 34.1(b).

16
17
18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21




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