Wang v. Blanche

Opinion

23-7322 Wang v. Blanche BIA A079 641 464

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 13th day of July, two thousand twenty- six.

PRESENT: JON O. NEWMAN, MICHAEL H. PARK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

LAN YUN WANG, Petitioner,

v. 23-7322 NAC TODD BLANCHE, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jason Jia, Esq., Jia Law Group, P.C., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Song Park, Assistant Director; Margot P. Kniffin, Trial Attorney; Alanna T. Duong, 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.

Petitioner Lan Yun Wang seeks review of a September 21, 2023, decision of

the BIA denying her motion to reopen her removal proceedings. In re Lan Yun

Wang, No. A079 641 464 (B.I.A. Sept. 21, 2023). We assume the parties’ familiarity

with the underlying facts and procedural history.

We review the denial of a motion to reopen, including the applicability of

equitable tolling, “under the familiar abuse of discretion standard, which is highly

deferential.” Ramsay v. Bondi, 171 F.4th 218, 220 (2d Cir. 2026) (quotation marks

omitted). There is no dispute that Wang’s motion to reopen was untimely

because she filed it more than 15 years after her removal order became final. See

8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day deadline). And she moved to reopen

to apply for cancellation of removal, so her motion did not fall into a statutory or

regulatory exception to the deadline. See 8 U.S.C. § 1229a(c)(7)(C) (listing

2 exceptions); 8 C.F.R. § 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103, 105

(B.I.A. 2009) (“[U]ntimely 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.”).

Equitable tolling may excuse the time limitation but requires a movant to

show “that some extraordinary circumstance stood in her way.” Doe v. United

States, 76 F.4th 64, 71 (2d Cir. 2023) (brackets and quotation marks omitted). We

find no error in the BIA’s conclusion that equitable tolling did not apply in Wang’s

circumstances. Because Wang did not become potentially eligible for cancellation

of removal until years after her removal proceedings concluded, she was not

wrongly prevented from applying for this relief in her underlying proceedings or

in a timely motion to reopen. Indeed, although Niz-Chavez v. Garland, 593 U.S.

155 (2021), clarified that Wang continued to accrue physical presence in the United

States after service of her notice to appear because that notice omitted a hearing

date, she entered the United States in 2003 and would not have accrued the ten

years of presence required for cancellation before her removal order became final

in 2005 or before the time to seek reopening expired, see 8 U.S.C. § 1229b(b)(1)(A).

Because Wang failed to demonstrate extraordinary circumstances as required to 3 warrant equitable tolling, the BIA did not err in denying her motion to reopen as

untimely. Accordingly, we need not reach the BIA’s alternative determination

that she did not establish her prima facie eligibility for cancellation of removal.

See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of which is unnecessary

to the results they reach.”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)

(recognizing that untimeliness and failure to establish prima facie eligibility for

relief are independent bases for denying motions to reopen).

The only remaining basis for reopening was the BIA’s discretionary

authority to reopen under 8 C.F.R. § 1003.2(a). We lack jurisdiction to review that

decision, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006), except that we may

remand if the BIA “misperceived the legal background” and denied sua sponte

reopening based on an erroneous determination that a petitioner was not eligible

for the relief sought, i.e., that “reopening would necessarily fail,” Mahmood v.

Holder, 570 F.3d 466, 469 (2d Cir. 2009). The BIA did not decline to reopen sua

sponte based on Wang’s failure to establish her eligibility for relief; it explained,

in accordance with its regulations and precedent, that its discretionary authority

to reopen was not a means to avoid enforcement of the time limits on motions and

that reopening was not required even if a movant established prima facie 4 eligibility for relief. See 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny a

motion to reopen even if the moving party has made out a prima facie case for

relief.”); In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997) (“The power to reopen on

our own motion is not meant to be used as a general cure for filing defects or to

otherwise circumvent the regulations, where enforcing them might result in

hardship.”). And the BIA did not misperceive the law because becoming

potentially eligible for relief from removal years after being ordered removed is

not alone an exceptional circumstance. See Matter of Yauri, 25 I. & N. Dec. at 104-

05, 112 (finding no exceptional circumstances based on a purported intervening

change in law).

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