19-2561 Zheng v. Garland BIA A072 216 761 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 27th day of August, two thousand twenty- one.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

SUN WON ZHENG, AKA XINGWANG ZHENG, Petitioner,

v. 19-2561

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, 1 Respondent. _____________________________________

FOR PETITIONER: Peter L. Quan, Esq., New York, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Kohsei

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted for Attorney General William P. Barr. Ugumori, Senior Litigation Counsel; Jesse D. Lorenz, 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 DENIED in part and DISMISSED in part.

Petitioner Sun Won Zheng, a native and citizen of the

People’s Republic of China, seeks review of a July 25, 2019

decision of the BIA denying his motion to reopen Zheng’s

exclusion proceedings. In re Sun Won Zheng, No. A072 216 761

(B.I.A. July 25, 2019). 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 Jian Hui Shao v. Mukasey,

(2d Cir. 2008). Before the BIA, Zheng argued

that the time limitation for filing his motion to reopen

should be tolled due to the ineffective assistance of his

former counsel and that his exclusion proceedings should be

reopened to permit him to apply for certain forms of relief.

It is undisputed that Zheng’s 2018 motion to reopen was

untimely because he filed it more than 20 years after his

2 exclusion and deportation order became final in 1997. See

8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for

motions to reopen);

(c)(2) (same). The BIA

did not err in declining to equitably toll the period for

Zheng to file his motion based on his claim that his former

attorney was ineffective in his underlying exclusion

proceedings because Zheng failed to exercise due diligence

during the more than 20 years that passed between his order

of exclusion and his motion to reopen. See Rashid v. Mukasey,

(2d Cir. 2008); Jian Hua Wang v. BIA,

(2d Cir. 2007).

Because Zheng did not demonstrate that the time

limitation applicable to his motion should be excused, “his

motion to reopen could only be considered upon exercise of

the [BIA’s] sua sponte authority.” Mahmood v. Holder,

(2d Cir. 2009). We lack jurisdiction to review

the agency’s “entirely discretionary” decision declining to

reopen proceedings sua sponte and dismiss the petition to

that extent. Ali v. Gonzales,

(2d Cir.

2006).

3 * * *

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. All pending motions

and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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