     14-4247
     Hernandez-Bautista v. Barr
                                                                                   BIA
                                                                           A073 467 248
                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 13th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   TEODORA HERNANDEZ-BAUTISTA,
14            Petitioner,
15
16                     v.                                        14-4247
17                                                               NAC
18
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Mark J. Devine, Charleston, SC.
25
26   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
27                                      Attorney General; Leslie McKay,
28                                      Senior Litigation Counsel; Siu P.
29                                      Wong, Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      Washington, DC.
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 DENIED in part and DISMISSED in part.

5          Petitioner         Teodora   Hernandez-Bautista,             a   native   and

6    citizen of Mexico, seeks review of an October 17, 2014,

7    decision of the BIA denying her motion to reopen.                           In re

8    Teodora Hernandez-Bautista, No. A 073 467 248 (B.I.A. Oct. 17,

9    2014).        We    assume     the       parties’     familiarity       with    the

10   underlying facts and procedural history in this case.

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

12   abuse of discretion.          Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006).        A motion to reopen must be filed no later than

14   90 days after the final administrative decision is rendered.

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

16   Hernandez-Bautista’s motion—filed more than ten years after

17   her   appeal       was   dismissed       and   she    was     granted   voluntary

18   departure—was thus untimely, and she identified no exceptions

19   to    the   time     limit.        See    8    U.S.C.    § 1229a(c)(7)(C)(ii)

20   (exception for asylum); 8 C.F.R. § 1003.2(c)(3) (listing

21   exceptions).        Accordingly, the only basis for reopening was
                                               2
1    the BIA’s authority to reopen sua sponte.

2        The BIA has authority to reopen sua sponte despite the

3    time and number limitations, see 8 C.F.R. § 1003.2(a), but we

4    lack jurisdiction to review the “entirely discretionary”

5    decision declining to do so, see Ali, 448 F.3d at 518.

6    Although we may remand if the BIA “misperceived the legal

7    background and thought, incorrectly, that a reopening would

8    necessarily   fail,”   that   exception   does   not   apply   here.

9    Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).       The BIA

10   did not misperceive the law in declining to reopen Hernandez-

11   Bautista’s proceedings.

12       In her motion to reopen, Hernandez-Bautista conceded that

13   she was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i).          In

14   denying her motion, the BIA relied on subsection (II) of that

15   provision, which states that “[a]ny alien who . . . has been

16   ordered removed . . . and who enters or attempts to reenter

17   the United States without being admitted is inadmissible.”

18   Hernandez-Bautista argues that she did not accrue enough

19   unlawful presence to qualify as inadmissible under 8 U.S.C.

20   § 1182(a)(9)(C)(i).     But she misunderstands the statute.

21   Although subsection (I) of the provision is limited to aliens
                                     3
1    who aggregate over one year of unlawful presence, subsection

2    (II)    does       not   have       the    aggregate     time      requirement.

3    Accordingly, Hernandez-Bautista has not shown that the BIA

4    misperceived the law in finding her inadmissible under 8

5    U.S.C. § 1182(a)(9)(C)(i)(II).                 See Mahmood, 570 F.3d at 469.

6           Further, an alien who is inadmissible under 8 U.S.C.

7    § 1182(a)(9)(C)(i)(II)              cannot      retroactively       apply    for

8    permission to reapply for admission.                See Delgado v. Mukasey,

9    516 F.3d 65, 72-74 (2d Cir. 2008) (citing In re Torres-Garcia,

10   23 I. & N. Dec. 866 (BIA 2006)).                Therefore, given Hernandez-

11   Bautista’s concessions in her motion to reopen regarding her

12   departure and reentry without permission, and that she was

13   inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i), the BIA did

14   not misperceive the law when it determined that she was

15   inadmissible under § 1182(a)(9)(C)(i)(II) and could not apply

16   for relief nunc pro tunc.

17          We   also     lack        jurisdiction     to    consider    Hernandez-

18   Bautista’s     remaining            argument.          She   challenges     the

19   constitutionality           of    the     revocation    of   her    1991    visa

20   petition, but the BIA found that this argument did not

21   implicate an exception to the time limit on motions to reopen
                                                4
1    or constitute an exceptional circumstance.     As noted above,

2    Hernandez-Bautista’s motion to reopen did not implicate any

3    exception to the timing requirement.     We lack jurisdiction

4    to further review the BIA’s conclusions that circumstances

5    were not so exceptional as to warrant sua sponte reopening.

6    See Ali, 448 F.3d at 518.

7        For the foregoing reasons, the petition for review is

8    DENIED in part and DISMISSED in part.     Any pending request

9    for oral argument in this petition is DENIED in accordance

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe,
14                                 Clerk of Court
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