Li Chen v. Garland, 19-4162

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMENASHI, CIRCUIT JUDGE:
PartiesLi Chen, Petitioner, v. Merrick B. Garland, United States Attorney General, Respondent.
Docket Number19-4162
Decision Date05 August 2022

Li Chen, Petitioner,

Merrick B. Garland, United States Attorney General, Respondent.

No. 19-4162

United States Court of Appeals, Second Circuit

August 5, 2022

ARGUED: MARCH 18, 2022

On Petition for Review of an Order of the Board of Immigration Appeals

STUART ALTMAN, Law Office of Stuart Altman, New York, NY, for Petitioner.

JENNY C. LEE, Trial Attorney, Office of Immigration Litigation (Jeffrey B. Clark, Acting Assistant Attorney General, Civil Division, Matthew B. George, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Before: JACOBS, POOLER, and MENASHI, Circuit Judges.

Li Chen, a citizen of China, petitions for this court's review of the BIA's denial of his motion to reopen his removal proceedings. According to Chen, the BIA erred in finding his motion to be time-barred under 8 U.S.C. § 1229a and further erred in refusing to exercise its authority to reopen his case sua sponte. However, Chen's motion


was filed years after his order of removal became final, and he has not identified any changed country conditions that could justify the delay. Furthermore, we lack jurisdiction to review the BIA's decision not to reopen a case sua sponte. We therefore dismiss in part and deny in part Chen's petition for review.

Judge Pooler concurs in a separate opinion.


In 2014, an immigration judge ("IJ") entered an order of removal for Li Chen, a citizen of China who arrived in the United States without inspection. Two years later, Chen, having never left, obtained derivative asylee status through his wife. He filed a motion to reopen his case in 2018, seeking to terminate the removal proceedings. The same IJ denied his motion as untimely under 8 U.S.C. § 1229a(c)(7)(C) and declined to exercise the authority to reopen Chen's case sua sponte. The Board of Immigration Appeals ("BIA") affirmed without a written opinion, and Chen petitioned our court to review the BIA's order.


This court has repeatedly held that we lack jurisdiction to review the BIA's refusal to exercise its authority to reopen a case sua sponte. See, e.g., Cyrus v. Keisler, 505 F.3d 197, 202 (2d Cir. 2007). And Chen's motion is untimely under § 1229a(c)(7)(C)(i). The petition is therefore dismissed in part and denied in part.



Under the Immigration and Nationality Act, an order of removal is "the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). That order becomes "final" upon the earlier of "a determination by the Board of Immigration Appeals affirming such order" or "the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." Id. § 1101(a)(47)(B).

A longstanding avenue for challenging final orders of removal is the motion to reopen, by which an alien "asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing." Ke Zhen Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir. 2001); see also Kucana v. Holder, 558 U.S. 233, 242 (2010) ("Federal-court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916."). At one time, "the authority for such motions derived solely from regulations promulgated by the Attorney General." Luna v. Holder, 637 F.3d 85, 95 (2d Cir. 2011). But Congress codified the motion to reopen by enacting the Illegal Immigration Reform and Immigration Responsibility Act


of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, which "transform[ed] the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien." Dada v. Mukasey, 554 U.S. 1, 14 (2008).

Under the IIRIRA-now codified at 8 U.S.C. § 1229a-an alien "may file one motion to reopen proceedings," which "shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7). The statute also provides a limited exception to the 90-day deadline. Under 8 U.S.C. § 1229a(c)(7)(C)(ii), "[t]here is no time limit on the filing of a motion to reopen" if three conditions are met. First, "the basis of the motion" must be to apply for asylum or statutory withholding of removal. Id. § 1229a(c)(7)(C)(ii). Second, the motion must be "based on changed country conditions arising in the country of nationality or the country to which removal has been ordered." Id. Third, it must be that the evidence of changed country conditions "is material and was not available and would not have been discovered or presented at the previous proceeding." Id.

Apart from § 1229a, the BIA also has the authority to reopen a case sua sponte. See Zhang v. Holder, 617 F.3d 650, 657-58 (2d Cir. 2010). "Sua sponte reopening was created by agency regulations; no statute establishes or limits an IJ's or the BIA's authority to reopen a case on their own motion." Rubalcaba v. Garland, 998 F.3d 1031, 1037 (9th Cir. 2021). The regulation governing sua sponte reopening, 8 C.F.R. § 1003.2, "derives from a statute that grants general authority over immigration and nationalization matters to the Attorney General, and sets no standard for the Attorney General's decision-making in this context." Lenis v. U.S. Att'y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008)


(referring to 8 U.S.C. § 1103(g)(2)). The regulation reflects this discretion. At the time of the proceedings in this case, 8 C.F.R. § 1003.2(a) provided that "[t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision."

On December 16, 2020, the Executive Office of Immigration Review promulgated a new rule, limiting the instances in which sua sponte reopening may be employed and making those new limits "effective for all cases, regardless of posture, on the effective date." Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed.Reg. 81,588, 81,588, 81,654 (Dec. 16, 2020) (codified at 8 C.F.R. § 1003.2). Thus, 8 C.F.R. § 1003.2(a) now provides that the BIA "may at any time reopen" a case "solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service." It also provides that, "[i]n all other cases, the Board may only reopen or reconsider any case in which it has rendered a decision solely pursuant to a motion filed by one or both parties." 8 C.F.R. § 1003.2(a) (2021). The final rule's effective date was January 15, 2021. 85 Fed.Reg. at 81,588.


Over a decade ago, Li Chen arrived in the United States through Miami, Florida, without inspection. In November 2009, he applied for asylum, withholding of removal, and relief under the Convention Against Torture. In his application, Chen claimed that he "was persecuted by the Chinese government because [he] practiced Falun Gong in China," was "arrested, detained, interrogated, and tortured by the Chinese police," and was "afraid of being persecuted


by the Chinese government again." Cert. Admin. R. 559. In January 2010, the Department of Homeland Security initiated removal proceedings against Chen as an "alien present in the United States without being admitted or paroled, or who [has] arrive[d] in the United States at any time or place other than as designated by the Attorney General." 8 U.S.C. § 1182(a)(6)(A)(i).

In December 2011, an IJ sustained the charge of removability and found that Chen failed to establish his eligibility for the relief he sought. Specifically, the IJ found that Chen did not demonstrate by clear and convincing evidence that he had filed his asylum application within a year of arriving in the United States and that Chen was not credible based on inconsistencies between his testimony at the hearing and his application. Chen appealed to the BIA, and in July 2013 the BIA remanded to the IJ for further proceedings. The BIA agreed that Chen failed to demonstrate eligibility for asylum, but it held that the IJ committed clear error in finding that Chen was not credible.

On remand, in March 2014, the IJ denied Chen's application. Chen never appealed this decision, and therefore there is no hearing transcript.[1] In the reopening proceedings at issue in this case, the IJ summarized the remand hearing and decision. According to the IJ, Chen admitted to false testimony in his hearing on remand. Ultimately, the IJ concluded that Chen, "by presenting new documents and testimony after the remand, had undermined the


Board's prior conclusion that he should be considered credible." Cert. Admin. R. 69. Accordingly, the IJ ordered Chen removed to China.

At some point during his time in the United States, Chen married Yan Lin Huang, also an alien. On January 5, 2015, Huang was granted asylum, and days later she filed a Form I-730 Refugee Asylee Relative Petition. On May 3, 2016, that motion was granted. Years after Chen's application was denied, he had become a derivative asylee. See 8 U.S.C. § 1158(b)(3)(A) ("A spouse ... of an alien who is granted asylum under [§ 1158(b)] may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying ... such alien.").

On June 6, 2016, Chen moved the Immigration Court "for an order to reopen and terminate his removal proceedings on the ground that [he] was granted asylee status on May 3, 2016." Cert. Admin. R. 75. In his affidavit, Chen gave his reasons for wanting his removal proceedings terminated. According to Chen, "if I meet the police or immigration officers I still might be taken by them because I was ordered removed." Id. at 80. Additionally, Chen...

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