Jiang v. Blanche

Opinion

24-3136 Jiang v. Blanche BIA A072 783 469

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 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 20th day of April, two thousand twenty-six.

PRESENT: JON O. NEWMAN, GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

XIN JIANG, Petitioner,

v. 24-3136 NAC TODD BLANCHE, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jason Jia, Esq., Jia Law Group, P.C., New York, NY. FOR RESPONDENT: Brett Shumate, Assistant Attorney General; Lindsay B. Glauner, Assistant Director; Margot L. Carter, Senior Litigation Counsel, 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.

Petitioner Xin Jiang, a native and citizen of the People’s Republic of China,

seeks review of a November 18, 2024, decision of the BIA denying his motion to

reopen his deportation proceedings to apply for cancellation of removal under

8 U.S.C. § 1229b(b)(1). In re Xin Jiang, No. A072 783 469 (B.I.A. Nov. 18, 2024).

We assume the parties’ familiarity with the underlying facts and procedural

history.

We generally review the BIA’s denial of a motion to reopen for abuse of

discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).

There is no dispute that Jiang’s motion to reopen was untimely and number-

barred because it was his third such motion and he filed it more than 25 years after

his deportation order became final. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i)

(permitting one motion to reopen and setting 90-day deadline). And he moved 2 to reopen to apply for cancellation of removal, so his motion did not fall into a

statutory or regulatory exception to the time and number limitations. See 8 U.S.C.

§ 1229a(c)(7)(C) (listing exceptions); 8 C.F.R. § 1003.2(c)(3) (same); Matter of Yauri,

25 I. & N. Dec. 103, 105 (B.I.A. 2009). Further, equitable tolling was not warranted.

Jiang relied on Pereira v. Sessions, 585 U.S. 198 (2018) and Niz-Chavez v. Garland, 593

U.S. 155 (2021), which held that a statutorily defective “notice to appear” does not

stop the accrual of physical presence required for cancellation of removal. As the

BIA concluded, Pereira and Niz-Chavez are not applicable to Jiang’s proceedings

because he was placed in deportation proceedings by service of an order to show

cause, which did not have the same statutory requirements as a notice to appear.

See Naizhu Jiang v. Garland, 18 F.4th 730, 734–35 (2d Cir. 2021) (holding that Niz-

Chavez and Pereira do not render [orders to show cause] insufficient to trigger the

stop-time rule if they omit the date or place of the hearing”).

Alternatively, the BIA did not err in declining to reopen because Jiang failed

to establish his prima facie eligibility for cancellation. See INS v. Abudu, 485 U.S.

94, 104 (1988) (providing that the agency may deny a motion to reopen if “the

movant has not established a prima facie case for the underlying substantive relief

3 sought.”). * Jiang’s children were no longer qualifying relatives for purposes of

cancellation of removal because they were over 21 years of age. See 8 U.S.C.

§§ 1101(b)(1) (defining child), 1229b(b)(1)(D) (requiring cancellation applicant to

show “exceptional and extremely unusual hardship to the alien’s spouse, parent,

or child, who is a citizen of the United States or an alien lawfully admitted for

permanent residence”); Yupangui-Yunga, 157 F.4th at 519–20 (“We hold that

§ 1229b(b)(1)(D) requires a qualifying ‘child’ to be under the age of 21 at the time

an application for cancellation of removal is adjudicated.”).

Finally, “we do not have jurisdiction to review the BIA’s entirely

discretionary refusal to reopen a case sua sponte” under 8 C.F.R. § 1003.2(a). Li

Chen v. Garland, 43 F.4th 244, 249, 253 (2d Cir. 2022) (quotation marks and brackets

omitted).

* Where, as here, the underlying relief sought is discretionary, our review is limited to constitutional claims and questions of law. Wilkinson v. Garland, 601 U.S. 209, 218 (2024); Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) (“[A] jurisdictional provision that applies to a final order of removal necessarily also applies to related motions to reconsider and reopen.”). We review de novo the question of law presented here regarding the timing of a qualifying relative determination. See Yupangui-Yunga v. Bondi, 157 F.4th 512, 518 (2d Cir. 2025). 4 For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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