Opinion
No. 08-5041-ag.
December 21, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Theodore N. Cox, New York, NY, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Michelle Gorden Latour, Assistant Director, Brendan P. Hogan, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondents.
PRESENT: Hon. DENNIS JACOBS, Chief Judge, Hon. ROGER J. MINER, and Hon. REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Cho-Ping Zhen, a native and citizen of the People's Republic of China, seeks review of a September 23, 2008 order of the BIA denying his motion to reopen. In re Cho-Ping Zhen, No. A072 460 484 (B.I.A. Sept. 23, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Reviewing for abuse of discretion, see Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam), we conclude that the BIA did not abuse its discretion in denying Zhen's motion to reopen. With certain exceptions not applicable here, see 8 C.F.R. § 1003.2(c)(3), federal regulations permit an individual to file only one motion to reopen, and require that the motion be filed within ninety days of a final agency order, see 8 C.F.R. § 1003.2(c)(2). Zhen's second motion to reopen, filed more than six years after the BIA's final order of exclusion, is both number-barred and untimely.
Zhen argues that the BIA should have reopened his proceedings pursuant to an interim rule adopted by the Attorney General allowing "arriving aliens" placed in removal proceedings to apply for adjustment of status with the United States Citizenship and Immigration Services ("USCIS"). See 71 Fed.Reg. 27, 585, at 27, 588 (May 12, 2006). Citing Sheng Goo Ni v. BIA, 520 F.3d 125 (2d Cir. 2008), Zhen asserts that the BIA's denial of his motion to reopen exposes him to the enforcement of his deportation order and thus renders the interim rule worthless.
Zhen's reliance on Sheng Gao Ni is misplaced, as that case involved petitioners seeking review of the BIA's denial of timely motions to reopen. Petitioners in such circumstances are not required to meet any exception to the time and numerical limitations on motions to reopen. In contrast, as noted above, Zhen's motion was both untimely and number-barred. Thus, we find no abuse of discretion in the BIA's denial of his motion. See 8 C.F.R. § 1003.2(c)(2).
We lack jurisdiction to review the BIA's decision not to reopen Zhen's proceedings sua sponte under 8 C.F.R. § 1003.2(a). Such a decision is "entirely discretionary. Azmond All v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. 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 accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).