Chen v. Gonzales, No. 04-1389 (2d Cir. 2007)

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04-1389-ag Chen v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: June 15, 2007 Decided: June 25, 2007) Docket No. 04-1389-ag - - - - - - - - - - - - - - - - - - - -x ZHAO QUAN CHEN, Petitioner, -v.ALBERTO GONZALES, Attorney General,* Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, SOTOMAYOR, and WESLEY, Circuit Judges. Petition for review of a final decision and order of 30 the Board of Immigration Appeals denying petitioner s motion 31 for reconsideration of the denial of petitioner s motion to 32 reopen. 33 Petition denied. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Alberto Gonzales is substituted for his predecessor, Attorney General John Ashcroft, as respondent. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Norman Kwai Wing Wong, New York, NY, for Petitioner. MICHAEL J. EDNEY, United States Department of Justice, Office of Legal Counsel (Fred T. Hinrichs, Assistant United States Attorney, Donald J. DeGabrielle, Jr., United States Attorney for the Southern District of Texas, Houston, TX, on the brief ), for Respondent. PER CURIAM: Zhao Quan Chen, a native and citizen of China, seeks 17 review of a March 5, 2004 order of the Board of Immigration 18 Appeals ( BIA ) denying his motion to reconsider the BIA s 19 January 6, 2004 denial of the motion to reopen his 20 immigration proceedings. 21 This Court earlier denied Chen s petition for review 22 from the BIA s November 9, 1999 decision affirming the IJ s 23 denial of a motion to reopen proceedings in which a 24 deportation order was issued against Chen in absentia after 25 Chen failed to appear at his hearing. 26 INS, 85 F. App x 223 (2d Cir. 2003). 27 soon before this Court issued its decision, Chen filed a 28 motion to reopen with the BIA, on the premise that, after 29 the BIA s 1999 decision, the INS approved an I-140 petition 30 filed by Chen s employer on his behalf. 2 See Zhao Quan Chen v. On October 9, 2003, The BIA denied 1 Chen s motion to reopen as untimely because it was filed 2 more than 90 days after the issuance of the BIA s final 3 decision in 1999. 4 in his motion to reconsider--and argues again here--in the 5 alternative (1) that his pending petition for review before 6 this Court rendered the BIA s decision non-final, and 7 therefore the 90-day period had not yet begun to run; (2) 8 that his pending petition for review before this Court 9 equitably tolled the 90-day period; or (3) that the BIA 10 should have granted the motion on humanitarian grounds 11 notwithstanding its untimeliness. 12 See 8 C.F.R. § 1003.2(c)(2). Chen argued The BIA s denial of a motion to reopen or reconsider is 13 reviewed for abuse of discretion. 14 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). 15 its discretion if it acts arbitrarily or capriciously, that 16 is, when it provides no rational explanation, departs from 17 established policies without explanation, or justifies its 18 decision with only conclusory statements. 19 413 F.3d 232, 234 (2d Cir. 2005) (per curiam). 20 acted well within its discretion. 21 22 See Jin Ming Liu v. The BIA abuses See Kaur v. BIA, Here the BIA With some exceptions not relevant here, a motion to reopen shall be filed within 90 days of the date of entry 3 1 of a final administrative order of removal. 2 1229a(c)(7)(C)(i). 3 Chen s motion to reopen was therefore late--by approximately 4 three years and eight months. 5 8 U.S.C. § See also 8 C.F.R. § 1003.2(c)(2). Chen s argument that the BIA s decision was not final 6 until this Court had reviewed it is unavailing. Courts have 7 long recognized that the filing of a motion to reopen before 8 the BIA does not impact the finality of a removal order, see 9 Stone v. INS, 514 U.S. 386, 405-06 (1995), and that 10 therefore the limitations period for a petition for review 11 of a final order of removal under 8 U.S.C. § 1252(b)(1) 12 begins to run immediately upon the order s issuance by the 13 BIA, see Kaur, 413 F.3d at 233 (citing Stone, 514 U.S. at 14 405-06). 15 petition for review should affect finality. 16 Court has jurisdiction to review only petitions for review 17 of final orders of removal. 18 Chen were correct that an order of the BIA is not final 19 until this Court has issued its decision, then we would have 20 no jurisdiction over a petition for review until we had 21 already decided it; this cannot be the case. 22 Likewise, we see no reason why the filing of a Indeed, this See 8 U.S.C. § 1252(d). Just as meritless is Chen s argument that the 4 If 1 limitations period for a motion to reopen should have been 2 equitably tolled until this Court had issued its decision on 3 his petition. 4 inconsistent with the notion that a petition for review 5 tolls any limitations period applicable to motions before 6 the BIA. 7 reopen or reconsider [a removal order] shall be consolidated 8 with the review of the order. 9 Congress thus contemplated that a motion to reopen or The statutory scheme governing our review is That is because any review sought of a motion to 8 U.S.C. § 1252(b)(6). 10 reconsider might be filed concurrently with a petition for 11 review. 12 Cir. 2007). 13 any need to file a motion to reopen in a timely fashion, we 14 would likely never invoke § 1252(b)(6) to simultaneously 15 review a removal order and the denial of a motion to reopen, 16 and all petitioners whose first petition for review was 17 unsuccessful would invariably appear a second time (which, 18 as a practical matter, might be years later) with arguments 19 similar or identical to those advanced by the previous 20 petition for review. 21 and ripe for abuse, would be at odds with the spirit of § 22 1252(b)(6). See Randhawa v. Gonzales, 474 F.3d 918, 921 (6th If the filing of a petition for review obviated Such a result, which is inefficient See Randhawa, 474 F.3d at 922. 5 Thus, only [a 1 no-tolling] rule gives meaning to [§ 1252(b)(6)]. 2 514 U.S. at 395. 3 Stone, In any event, Chen adduced no evidence in the BIA that 4 he exercised due diligence during the relevant period, see 5 Jin Bo Zhao v. INS, 452 F.3d 154, 157 (2d Cir. 2006), and he 6 provided no explanation as to why his pending petition for 7 review impaired his ability to file a motion to reopen. 8 any such explanation would have been disingenuous since Chen 9 actually filed his motion to reopen before this Court issued 10 11 And any decision on his petition for review. As to Chen s argument that the BIA should have reopened 12 the case for humanitarian reasons notwithstanding the 13 motion s untimeliness, we lack jurisdiction to review the 14 BIA s refusal to exercise its discretionary power to reopen 15 sua sponte under 8 C.F.R. § 1003.2(a). 16 F.3d 515, 518 (2d Cir. 2006). 17 Ali v. Gonzales, 448 For the reasons set forth above, the petition is hereby 18 DENIED. 19 Chen s motion for a stay of removal is DISMISSED as moot. 6

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