ZHONGYU LIN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE and Eric H. Holder, Jr., U.S. Attorney General, Respondents, 394 F. App'x 830

SUMMARY ORDER Zhongyu Lin, a native and citizen of the People’s Republic of China, seeks review of a September 23, 2009, order of the BIA denying her motion to reopen. In re Zhongyu Lin, No. [ AXXX XXX XXX ] (B.I.A. Sept. 23, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of Lin’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

According to Lin, 8 U.S.C. § 1229a(c)(7)(C)(ii) implies that the timely filing of her first motion to reopen preserved her right to file a later motion to reopen, regardless of any time and numerical limitations that would otherwise apply. To the contrary, an alien may only file a single motion to reopen and must do so within ninety days of the final administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Lin’s August 2009 motion to reopen was filed seven years after the IJ’s June 2002 in absentia removal order became final.

Lin argues that the BIA abused its discretion in declining to excuse the ninety-day filing deadline for her motion to reopen. However, eligibility to adjust status does not constitute an exception to the applicable time limitation on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1008.2(c)(3); 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”).

Moreover, because Lin’s motion was untimely, her argument that reopening was warranted under In re Velarde-Pacheco, necessarily fails. See 23 I. & N. Dec. 253, 256 (BIA 2002)(permitting the agency to reopen an alien’s removal proceedings to allow them to apply to adjust status based on marriage to a U.S.citizen only when the motion to reopen was “timely filed”). The BIA therefore did not abuse its discretion in denying Lin’s untimely motion to reopen, and we deny the petition for review to this extent. See Ali, 448 F.3d at 517.

Finally, we lack jurisdiction to consider Lin’s argument that the BIA erroneously determined that she failed to demonstrate exceptional circumstances warranting reopening her proceedings sua sponte. The BIA’s determination as to whether it will exercise its sua sponte authority is entirely discretionary and thus beyond the scope of our jurisdiction. See id. at 518. Although remand may be appropriate “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail,” Mahmood v.

Holder, 570 F.3d 466, 469 (2d Cir.2009), there is no indication here that the BIA misperceived the law in declining to reopen proceedings sua sponte. For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. 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).