    13-2767
    Ouyang v. Lynch
                                                                                  BIA
                                                                          A077 957 760
                           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.

             At a stated term of the United States Court of
    Appeals for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of New
    York, on the 25th day of November, two thousand fifteen.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    ____________________________________

    XU TONG OUYANG,

                      Petitioner,

                      v.                                   13-2767
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*

             Respondent.
    _____________________________________



    *
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Loretta E. Lynch is automatically
    substituted for former Attorney General Eric H. Holder, Jr.
    as Respondent.
FOR PETITIONER:            Vlad Kuzmin, New York, New York.

FOR RESPONDENT:            Stuart F. Delery, Assistant Attorney
                           General; Kelly J. Walls, Senior
                           Litigation Counsel; Sara J. Bergene,
                           Trial Attorney, Office of Immigration
                           Litigation, Civil Division, United
                           States    Department   of    Justice,
                           Washington D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED for lack of jurisdiction.

    Petitioner Xu Tong Ouyang, a native and citizen of China,

seeks review of a June 21, 2013 decision of the BIA denying

his motion to reopen sua sponte.         See In re Xu Tong Ouyang,

No. A077 957 760 (B.I.A. June 21, 2013).             We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    It is undisputed that Ouyang’s motion to reopen, filed

approximately     nine   years   after   his   removal   order,   was

untimely.   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). However, the BIA may reopen a case sua sponte

at any time.    See 8 C.F.R. § 1003.2(a).        We generally lack

jurisdiction to review the BIA’s denial of a motion to reopen

pursuant to its sua sponte authority. See Luna v. Holder, 637


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F.3d 85, 95-96 (2d Cir. 2011); Ali v. Gonzales, 448 F.3d 515,

518 (2d Cir. 2006).    A narrow exception applies where the

agency has misperceived the law, for example, by erroneously

concluding that an application for relief “would necessarily

fail.”    Mahmood v. Holder, 570 F.3d 466, 469-71 (2d Cir.

2009).   Here, Ouyang does not argue that the BIA misperceived

the law or that Mahmood v. Holder applies; he argues only that

the BIA departed from its “established policies” in declining

to exercise its sua sponte authority.      We therefore lack

jurisdiction to review the BIA’s decision not to reopen sua

sponte under 8 C.F.R. § 1003.2(a), because that decision is

“entirely discretionary.”   Ali v. Gonzales, 448 F.3d at 518.

Ouyang has not identified any convincing basis for departure

from this rule.    The BIA’s decisions to exercise its sua

sponte authority to reopen other cases are not sufficient to

establish jurisdiction here.

    For the foregoing reasons, the petition for review is

DISMISSED for lack of jurisdiction.   As we have completed our

review, any stay of removal that the Court previously granted

in this petition is VACATED, and any pending motion for a stay

of removal in this petition is DISMISSED as moot. Any pending

request for oral argument in this petition is DENIED in



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accordance with Federal Rule of Appellate Procedure 34(a)(2),

and Second Circuit Local Rule 34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan   Wolfe,   Clerk




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