Li Ping Dong v. Sessions
700 F. App'x 47
| 2d Cir. | 2017Background
- Petitioner Li Ping Dong, a Chinese national, filed a second motion to reopen her removal proceedings twelve years after her removal order.
- Her motion sought to pursue adjustment of status; that application had already been denied before the BIA decision to deny reopening.
- Dong did not dispute that her motion was untimely and number-barred under the statutory and regulatory time limits for motions to reopen.
- Because her motion was untimely and not covered by regulatory exceptions, consideration depended on the BIA’s discretionary sua sponte authority to reopen.
- The BIA denied reopening, concluding Dong had not shown exceptional circumstances meriting sua sponte reopening.
- Dong petitioned for review of the BIA’s denial; the Second Circuit reviewed for abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA erred in denying reopening of removal proceedings | Dong argued the BIA should reopen to consider adjustment of status despite untimeliness | Government argued the motion was untimely/number-barred and not saved by any exception; reopening was discretionary | Denied — motion was untimely and outside regulatory exceptions; BIA permissibly declined to exercise sua sponte authority |
| Whether the BIA misperceived legal background such that remand is required | Dong relied on Sheng Gao Ni to claim the BIA misunderstood the posture and should have continued proceedings | Government: Sheng Gao Ni is distinguishable; here Dong’s adjustment was already denied so no basis to continue | Denied — no misperception by BIA; Sheng Gao Ni inapplicable |
| Whether an application for adjustment of status constitutes an exception to time/number bars | Dong implicitly argued her adjustment application could excuse untimeliness | Government pointed to BIA precedent rejecting that argument | Denied — adjustment applications do not fall within exceptions to time/number limits |
| Whether the Court can review the BIA’s exercise of sua sponte authority | Dong sought review of denial to reopen sua sponte | Government contended such discretionary decisions are generally unreviewable, absent misperception of law | Dismissed — Court lacks jurisdiction to review discretionary denial absent legal error; no such error here |
Key Cases Cited
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (standard: denial of motions to reopen reviewed for abuse of discretion)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (BIA sua sponte reopening is entirely discretionary; remand only if BIA misperceived legal background)
- Sheng Gao Ni v. Board of Immigration Appeals, 520 F.3d 125 (2d Cir. 2008) (remand where BIA misconstrued petitioners’ request as seeking adjudication rather than a continuance)