Zhang Wang Cheng v. United States Department of Justice
Zhang Wang Cheng v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 9th day of May, two thousand and six.
UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Zhang Wang Cheng, through counsel, petitions for review of the BIA’s denial of his motion to reopen his removal proceedings. We assume the parties’ familiarity with the underlying facts and procedural history.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA’s decision “ ‘provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.’ ” Id. at 233-34 (quoting Ke Zhen Zhao v. DOJ, 265 F.3d 83, 93 (2d Cir. 2001)).
An asylum applicant is' limited to only one motion to reopen, which must be filed within 90 days of a final
Here, Cheng filed a motion to reopen his proceedings before the BIA on March 19, 2003, about one year after the BIA indicated that it had dismissed his appeal. Cheng points out that the BIA’s March 14, 2002 decision is not in the record, and may be lost. Accordingly, the record does not indicate whether or when the agency sent Cheng adequate notice that it had denied his appeal. But the BIA did not abuse its discretion in determining that the time in which Cheng was to assert his ineffective assistance of counsel claim began the period on the date that the BIA decided
Next, we note that the BIA has limited authority to reopen an individual’s proceedings on its own. See 8 C.F.R. § 1003.2(a); see also In Re J-J- 21 I & N Dec. 976, 984, 1997 WL 434418 (BIA 1997). The decision of the BIA to reopen, or not reopen, a case sua sponte is completely discretionary, and we lack jurisdiction to review the BIA’s sua sponte discretionary authority. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3rd Cir. 2003); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian v. INS, 303 F.3d 1153, 1158 (9th Cir. 2002); Luis v. INS, 196 F.3d 36, 39 (1st Cir. 1999); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999).
For the foregoing reasons, Cheng’s petition for review is DENIED. Having 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 DENIED. Any pending request for oral arguments is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.