FULI ZHANG v. BARR (2019)

SUMMARY ORDER

Petitioner Fuli Zhang petitions for review of the BIA’s denial of his motion to reopen his asylum proceedings sua sponte. We generally lack jurisdiction to review such decisions. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Although we have jurisdiction to remand in certain limited circumstances, such as where the BIA “declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), Zhang does not here invoke that or any other exception to the rule adopted in Ali. Instead, Zhang urges us to reconsider Ali in light of the Supreme Court’s decision in Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). In Kucana, however, the Supreme Court “express[ed] no opinion on whether federal courts may review the [BIA’s] decision not to reopen removal proceedings sua sponte.” Kucana, 558 U.S. at 251 n.18, 130 S.Ct. 827. In addition, we have previously held that Kucana does not preclude a conclusion, like the one we reached in Ali, that agency decisions made discretionary by regulation (rather than by statute) may nevertheless be unreviewable because they are “committed to agency discretion by law” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). See Vela-Estrada v. Lynch, 817 F.3d 69, 72 (2d Cir. 2016) (per curiam). We are therefore unable to conclude that Kucana casts sufficient doubt on our holding in Ali to warrant reconsideration of that decision by a panel of this Court. See, e.g., In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010). Accordingly, we lack jurisdiction over Zhang’s petition for review.

For the foregoing reasons, the petition for review is DISMISSED.