Chi v. Barr

Opinion

18-2350 Chi v. Barr BIA

A 087 563 620

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of September, two thousand twenty. 5 6 PRESENT: 7 JON O. NEWMAN, 8 GERARD E. LYNCH, 9 STEVEN J. MENASHI, 10 Circuit Judges. 1 11 _____________________________________ 12 13 YUSHUANG CHI, 14 Petitioner, 15 16 v. 18-2350 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Louis H. Klein, Esq., The Kasen 24 Law Firm, PLLC, Flushing, NY. 25

1 - Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b).

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 2 General; Derek C. Julius, 3 Assistant Director; Zoe J. Heller, 4 Senior Litigation Counsel, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.

8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is DENIED. 12 Petitioner Yushuang Chi, a native and citizen of China, 13 seeks review of a July 11, 2018, decision of the BIA denying 14 Chi’s untimely motion to reopen proceedings and to reissue 15 its January 2017 decision ordering her removal to China. In 16 re Yushuang Chi, No. A 087 563 620 (B.I.A. Jul. 11, 2018). 17 We assume the parties’ familiarity with the underlying facts 18 and procedural history. 19 We review the agency’s denial of a motion to reopen or 20 reissue for abuse of discretion. See Jian Hui Shao v. 21 Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008) (motion to 22 reopen); Ping Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d 23 Cir. 2007) (motion to reissue). “An abuse of discretion may 24 be found in those circumstances where the [BIA’s] decision 25 provides no rational explanation, inexplicably departs from

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1 established policies, is devoid of any reasoning, or contains 2 only summary or conclusory statements; that is to say, where 3 the [BIA] has acted in an arbitrary or capricious manner.” 4 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d 5 Cir. 2001) (internal citations omitted). 6 As an initial matter, because Chi has not meaningfully 7 challenged the BIA’s determination that it did not have 8 authority to administratively close her case, she has waived 9 review of that finding. See Yueqing Zhang v. Gonzales, 426 10 F.3d 540, 545 n.7 (2d Cir. 2005) (“Issues not sufficiently 11 argued in the briefs are considered waived and normally will 12 not be addressed on appeal.” (internal quotation marks 13 omitted)). As discussed below, we otherwise find no abuse 14 of discretion in the BIA’s decision. 15 I. Motion to Reopen and Reissue 16 A motion to reopen must “be filed within 90 days of the 17 date of entry of a final administrative order of removal.” 18 8 U.S.C. § 1229a(c)(7)(C)(i). It is undisputed that Chi’s 19 motion was untimely: she filed it in February 2018, more than 20 a year after the BIA affirmed the IJ’s removal order in 21 January 2017. While there are limited exceptions to this

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1 deadline, including when reopening is sought to apply for 2 asylum based on a change in the country of removal or where 3 counsel was ineffective, Chi does not assert that these 4 exceptions apply. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 5 C.F.R. § 1003.2(c)(3) (listing exceptions); Rashid v. 6 Mukasey, 533 F.3d 127, 130 (2d Cir. 2008) (ineffective 7 assistance); Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 8 2009) (emphasizing “that untimely motions to reopen to pursue 9 an application for adjustment of status . . . do not fall 10 within any of the statutory or regulatory exceptions to the 11 time limits for motions to reopen before the Board”). 12 Chi instead argues that the BIA should have reopened 13 based on a pending visa petition filed by her lawful permanent 14 resident husband. She relies on In re Velarde-Pacheco, 23 15 I. & N. Dec. 253, 256 (BIA 2002), in which the BIA held that 16 it may grant a “properly filed” motion to reopen for the 17 purpose of applying for adjustment of status where a visa 18 petition is pending and the motion meets five specific 19 requirements. However, Chi did not satisfy the first 20 requirement that the motion be timely filed. In re Velarde- 21 Pacheco, 23 I. & N. Dec. at 256.

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1 Chi also argues that she merits equitable tolling or 2 reissuance of the BIA’s decision because (1) she was 3 financially unable to file a petition for review of the BIA’s 4 January 2017 decision, and (2) denying reopening would punish 5 her for U.S. Citizenship and Immigration Services taking too 6 long to adjudicate her visa petition and would violate due 7 process. 8 Although “the ninety-day deadline for filing a motion to 9 reopen is subject to equitable tolling under appropriate 10 circumstances,” Xue Yong Zhang v. Holder, 617 F.3d 650, 658 11 (2d Cir. 2010), the BIA did not abuse its discretion in 12 concluding that Chi did not merit equitable tolling or in 13 declining to reissue its decision. 14 First, Chi is essentially arguing that because she could 15 not afford to petition for review earlier, the BIA should 16 excuse her late filed motion to reopen based on a new form of 17 relief. It is unclear how failing to seek review of the 18 BIA’s 2017 decision affirming the denial of asylum relates to 19 her motion to reopen solely to seek adjustment of status based 20 on her marriage—which occurred after the IJ’s removal order. 21 Moreover, Chi was not barred from petitioning for review

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1 because this Court may waive filing fees for litigants who 2 are unable to pay, and Chi could have proceeded pro se or 3 moved for appointment of pro bono counsel. See 28 U.S.C. 4 § 1915(a)(1), (e)(1). 5 Second, Chi does not state a due process claim because, 6 as noted above, she could have filed a pro se petition for 7 review and requested in forma pauperis status, and Chi does 8 not have a constitutionally protected liberty or property 9 interest in a grant of adjustment of status because it is a 10 discretionary form of relief. See Yuen Jin v. Mukasey, 538 11 F.3d 143, 156–57 (2d Cir. 2008). Moreover, Chi could have 12 pursued this relief earlier. She married her husband in 13 February 2016, before the BIA ruled on her appeal, but her 14 husband did not file the visa petition until almost a year 15 after the BIA’s January 2017 decision. 16 Accordingly, because Chi’s motion did not fall within 17 any exception to the 90-day filing deadline and she did not 18 establish that she was entitled to equitable tolling, the BIA 19 did not abuse its discretion in denying her motion to reopen 20 or reissue. 21 II. Nunc Pro Tunc Relief

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1 Chi also did not establish that she warranted relief nunc 2 pro tunc. “When a matter is adjudicated nunc pro tunc, it 3 is as if it were done as of the time that it should have been 4 done.” Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004). 5 “It is . . . beyond question that an award of nunc pro 6 tunc may, in an appropriate circumstance, be granted as a 7 means of rectifying error in immigration proceedings.” Xue 8 Yong Zhang, 617 F.3d at 665 (quoting Edwards, 393 F.3d at 9 309). 10 Chi raises no legal arguments as to why she deserves nunc 11 pro tunc relief; instead she generally claims that her 12 situation is “sympathetic” and deserving of this equitable 13 relief. Nunc pro tunc relief is not warranted here because 14 there is no agency error: Chi was not deprived of an 15 opportunity to seek a form of relief, here adjustment of 16 status. See Edwards, 393 F.3d at 310. Her visa petition is 17 pending, and her allegation of agency delay is unsupported 18 given that she and her husband waited almost two years after 19 their marriage and almost a year after the BIA’s initial 20 decision affirming her removal order to file the visa 21 petition.

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2 III. Sua Sponte Reopening 3 Absent a timely motion to reopen as set forth in 8 U.S.C. 4 § 1229a(c)(7), the BIA has the authority to reopen sua sponte 5 as a matter of discretion. See 8 C.F.R. § 1003.2(a). 6 However, we lack jurisdiction to review the agency’s 7 “entirely discretionary” decision declining to exercise that 8 authority. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). 9 Although there is an exception to this jurisdictional bar if 10 the BIA “misperceived the legal background and thought, 11 incorrectly, that a reopening would necessarily fail,” 12 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there 13 was no such misperception here as the BIA simply stated that 14 sua sponte reopening was not warranted and did not opine on 15 Chi’s eligibility for relief. 16 For the foregoing reasons, the petition for review is 17 DENIED. All pending motions and applications are DENIED and 18 stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court