KON DANG CHEN, a.k.a. KONG DENG CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 391 F. App'x 53

SUMMARY ORDER Petitioner Kon Dang Chen, a native and citizen of the People’s Republic of China, seeks review of an April 22, 2009, order of the BIA denying his motion to reopen. In re Kon Dang Chen, No. [ AXXX XXX XXX ] (B.I.A. Apr. 22, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of Chen’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). The BIA did not abuse its discretion in denying the motion to reopen. Chen’s motion, which was indisputably untimely, sought reopening to apply for adjustment of status. However, eligibility for adjustment of status is not an exception to the applicable time limitation on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also Matter of Yauri, 25 I. & N.

Dec. 103, 105 (BIA 2009) (emphasizing “that untimely 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”). Thus, to the extent Chen sought reopening to pursue such relief, he was necessarily invoking the BIA’s authority to reopen his proceedings sua sponte. See Mahmood v.

Holder, 570 F.3d 466, 469 (2d Cir.2009) (“Because Mahmood’s untimely motion to reopen was not excused by any regulatory exception, his motion to reopen could only be considered upon exercise of the Agency’s sua sponte authority.”); 8 C.F.R. § 1003.2(a). The BIA’s decision whether to exercise its sua sponte authority is entirely discretionary and thus beyond the scope of our jurisdiction. See Ali, 448 F.3d at 518. In Mahmood v.

Holder, we found that “where the Agency may have declined to exercise its sua sponte authority because it misper-ceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate.” Mahmood, 570 F.3d at 469; see also Aslam v. Mukasey, 537 F.3d 110, 115 (2d Cir.2008) (drawing the distinction between discretionary and eligibility determinations and finding that as a statutory matter we have jurisdiction to review the latter but not the former).

However, there is no indication in this case that the BIA misperceived the law in declining to reopen Chen’s proceedings. To the contrary, the BIA found that a favorable exercise of its discretion was not warranted because Chen “only became potentially eligible for adjustment of status by virtue of his marriage over 6 years after the final order was entered in his case.” For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).