CHEN v. GARLAND (2021)

SUMMARY ORDER

Petitioner Jian Yun Chen, a native and citizen of the People's Republic of China, seeks review of a February 14, 2020 decision of the BIA affirming a June 14, 2019 decision of an Immigration Judge (“IJ”) denying Chen's motion to reopen. In re Jian Yun Chen, No. A XXX XX7 317 (B.I.A. Feb. 14, 2020), aff'g No. AXXX XX7 317 (Immig. Ct. N.Y. City June 14, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

Chen does not challenge the agency's conclusion that her motion—filed 16 years after her removal order—was untimely, and she does not assert that any exception to the filing deadline applies. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day deadline for motions to reopen). Her eligibility to adjust status through her husband is not an exception to the time limitation. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009)(“[M]otions 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 the Board and will ordinarily be denied.”).

Absent an exception, the only basis for reopening would have been an exercise of the agency's authority to reopen sua sponte. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (effective until Jan. 15, 2021). We lack jurisdiction to review the agency's “entirely discretionary” decision declining to reopen sua sponte. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Although we may remand if the agency “misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there was no such misperception here. The agency did not address Chen's eligibility for relief; it simply concluded that she failed to appeal the IJ's original decision and did not present exceptional circumstances. See In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997) (“The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship.”). To the extent that Chen seeks directly to challenge the IJ's 2003 frivolousness finding, that decision is not before us because the petition for review is timely only to challenge the denial of reopening. See Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001).

For the foregoing reasons, the petition for review is DISMISSED. All pending motions and applications are DENIED and stays VACATED.