Qiu Chen v. Board of Immigration Appeals
Opinion of the Court
SUMMARY ORDER
Qiu Chen, through counsel, petitions for review of an order by BIA Member Edward R. Grant denying his motion to reopen and apply for adjustment of status. In re Qiu Chen, No. A 70-900-724 (BIA Aug. 30, 2004). We assume that the parties are familiar with the underlying facts and procedural history of the case.
This Court reviews 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); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir. 2004). The BIA abuses its discretion when it “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.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
Chen offers three reasons why the BIA abused its discretion: (1) because his motion introduced a new fact — namely, his pending application for adjustment of status — the BIA should not have applied against him the 90-day deadline set forth in 8 C.F.R. § 1003.2(c)(2);' (2) due process required that the BIA provide Chen with a hearing on his motion; and (3) even if his motion was barred by the 90-day deadline, the BIA ought to have used its discretion to reopen his case sua sponte. None of these is availing.
Chen’s first argument fails because the regulations do not provide an exception to
Finally, Chen argues that, even if he was time-barred from moving to reopen, the BIA should have exercised its discretion to reopen his case sua sponte. We lack jurisdiction to review such decisions. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
We have considered Chen’s remaining arguments on this appeal and find them to be without merit. For the foregoing reasons, we DENY Chen’s petition for review and motion for stay.
. Chen also could have sought DHS’s consent to an untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(iii). Chen does not indicate that he did so or explain why he did not.
Reference
- Full Case Name
- QIU CHEN v. BOARD OF IMMIGRATION APPEALS
- Status
- Published