Ou v. Garland ( 2022 )

20-3944
Ou v. Garland
BIA
A200 181 403
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.
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 11th day of February, two thousand twenty-
two.
PRESENT:
ROBERT D. SACK,
SUSAN L. CARNEY,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
WENXIN OU,
Petitioner,
v. 20-3944
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Meer M. M. Rahman, Esq., New
York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Mona Maria
Yousif, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
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.
Petitioner Wenxin Ou, a native and citizen of the
People’s Republic of China, seeks review of a 2020 decision
of the BIA denying her motion to reopen. In re Wenxin Ou,
No. A 200 181 403 (B.I.A. Oct. 22, 2020). We assume the
parties’ familiarity with the underlying facts and procedural
history.
We dismiss the petition for review. It is undisputed that
Ou’s 2020 motion to reopen was untimely: she filed it more
than 5 years after her 2014 removal order became final. See
8 U.S.C. § 1229a(c)(7)(C)(i) (“[A] motion to reopen shall be
filed within 90 days of the date of entry of a final
administrative order of removal.”). Ou requested reopening
to pursue adjustment of status. Her request does not implicate
any exceptions to the 90-day deadline for filing a motion to
reopen. See id. § 1229a(c)(7)(C)(ii)–(iv) (listing
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exceptions); 8 C.F.R. § 1003.2(c)(3) (same); see also Matter
of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009)
(“emphasiz[ing] that untimely motions to reopen to pursue an
application for adjustment of status . . . do not fall within
any of the statutory or regulatory exceptions to the time
limits for motions to reopen before the Board and will
ordinarily be denied”).
Thus, Ou’s motion necessarily relied on the BIA’s
discretionary authority to reopen her proceedings sua sponte.
See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); see
also 8 C.F.R. § 1003.2(a) (version in effect until Jan. 15,
2021). We generally lack jurisdiction to review the BIA’s
decision to deny reopening in these circumstances, because
its decision is “entirely discretionary.” Ali v. Gonzales,
448 F.3d 515, 518 (2d Cir. 2006). We may exercise
jurisdiction, grant such a petition, and remand only “where
the [BIA] may have declined to exercise its sua sponte
authority because it misperceived the legal background and
thought, incorrectly, that a reopening would necessarily
fail.” Mahmood, 570 F.3d at 469. This narrow exception does
not apply here because the BIA did not rule on Ou’s
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eligibility to adjust; it simply found that she did not
present an exceptional situation warranting a favorable
exercise of discretion.
For the foregoing reasons, the petition for review is
DISMISSED. All pending motions and applications are DENIED
and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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