17-3654 Zhang v. Barr BIA A200 922 480 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

FULI ZHANG, Petitioner,

v. 17-3654 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Stuart Altman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Sara J. Bayram, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED.

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,

(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,

(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,

(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,

n.18. In

addition, we have previously held that Kucana does not

preclude a conclusion, like the one we reached in Ali, that

2 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,

(a)(2). See Vela-Estrada v. Lynch,

(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,

(2d Cir.

2010). Accordingly, we lack jurisdiction over Zhang’s

petition for review.

For the foregoing reasons, the petition for review is

DISMISSED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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