20-3944 Ou v. Garland BIA A200 181 403 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 11th day of February, two thousand twenty- two.

PRESENT: ROBERT D. SACK, SUSAN L. CARNEY, MICHAEL H. PARK, Circuit Judges. _____________________________________

WENXIN OU, Petitioner,

v. 20-3944 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Meer M. M. Rahman, Esq., New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Mona Maria Yousif, 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 Wenxin Ou, a native and citizen of the

People’s Republic of China, seeks review of a 2020 decision

of the BIA denying her motion to reopen. In re Wenxin Ou,

No. A 200 181 403 (B.I.A. Oct. 22, 2020). We assume the

parties’ familiarity with the underlying facts and procedural

history.

We dismiss the petition for review. It is undisputed that

Ou’s 2020 motion to reopen was untimely: she filed it more

than 5 years after her 2014 removal order became final. See

8 U.S.C. § 1229a(c)(7)(C)(i) (“[A] motion to reopen shall be

filed within 90 days of the date of entry of a final

administrative order of removal.”). Ou requested reopening

to pursue adjustment of status. Her request does not implicate

any exceptions to the 90-day deadline for filing a motion to

reopen. See id. § 1229a(c)(7)(C)(ii)–(iv) (listing

2 exceptions);

(c)(3) (same); see also Matter

of Yauri,

(B.I.A. 2009)

(“emphasiz[ing] that untimely motions 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 before the Board and will

ordinarily be denied”).

Thus, Ou’s motion necessarily relied on the BIA’s

discretionary authority to reopen her proceedings sua sponte.

See Mahmood v. Holder,

(2d Cir. 2009); see

also

(a) (version in effect until Jan. 15,

2021). We generally lack jurisdiction to review the BIA’s

decision to deny reopening in these circumstances, because

its decision is “entirely discretionary.” Ali v. Gonzales,

(2d Cir. 2006). We may exercise

jurisdiction, grant such a petition, and remand only “where

the [BIA] may have declined to exercise its sua sponte

authority because it misperceived the legal background and

thought, incorrectly, that a reopening would necessarily

fail.” Mahmood,

. This narrow exception does

not apply here because the BIA did not rule on Ou’s

3 eligibility to adjust; it simply found that she did not

present an exceptional situation warranting a favorable

exercise of discretion.

For the foregoing reasons, the petition for review is

DISMISSED. All pending motions and applications are DENIED

and stays VACATED.

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

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