
    Lolita SHIVMANGAL, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
    No. 07-2173-ag.
    United States Court of Appeals, Second Circuit.
    Sept. 22, 2008.
    Frederick P. Korkosz, Law Offices of Alice K. Berke, Albany, NY, for Petitioner.
    Sarah Maloney (Gregory G. Katsas and Linda S. Wernery, of counsel) Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent.
    Present: Hon. WALKER, Hon. ROBERT A. KATZMANN and Hon. JOHN R. GIBSON, Circuit Judges.
    
      
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales.
    
    
      
       The Honorable John R. Gibson of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
    
   SUMMARY ORDER

Lolita Shivmangal, a citizen of Guyana, petitions for review of an April 23, 2007 BIA decision explaining that petitioner had not properly filed her appeal because the check that she submitted could not be cashed and therefore declaring final the October 19, 2006 decision of immigration judge Philip J. Montante, Jr. denying petitioner’s motion to reopen her removal order. In re Lolita Shivmangal, No. [ AXX XXX XXX ] (B.I.A. Apr. 23, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conelusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. United States Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted).

In declaring the decision of the immigration judge final, the BIA explained that “payment could not be collected on the check that [petitioner] submitted in payment of the fee requirement.... The respondent has failed to satisfy the fee requirements for filing an appeal.” (internal citations omitted). This ruling is consistent with the regulations governing appeals to the BIA. 8 C.F.R. § 1003.8 provides that a filing fee or a fee waiver request is required in connection with a motion to reopen before the BIA. And the regulations specify that appeals to the BIA “must be accompanied by a cheek, money order, or fee waiver request in satisfaction of the fee requirements.” 8 C.F.R. § 1003.3(a)(3). The regulations further provide that the fee shall be paid by check, money order, or electronic payment, and “[a] payment that is uncollectible does not satisfy a fee requirement.” 8 C.F.R. § 1003.8(a)(4)(i). “An appeal is not properly filed unless it is received at the Board, along with all required documents, fees or fee waiver requests, and proof of service, within the time specified” by the regulations. 8 C.F.R. § 1003.3(a)(1). In addition, the regulations state that if the fee is not paid within the requisite time period, “the appeal will not be deemed properly filed and the decision of the Immigration Judge shall be final to the same extent as though no appeal had been taken.” 8 C.F.R. § 1003.38(d). These regulations are unambiguous and controlling on the BIA.

Petitioner argues that the BIA erred in failing to consider whether there were “extraordinary or unique circumstances such that the petitioner’s appeal should have been heard, despite the untimeliness of the filing.” Zhong Guang Sun v. United States Dep’t of Justice, 421 F.3d 105, 111 (2d Cir.2005) (internal quotation marks omitted). We have explained that the “BIA ‘abuses its discretion’ in dismissing an appeal as untimely when it does not consider whether the reasons given for an untimely appeal constitute extraordinary or unique circumstances.” Khan v. United States Dep’t of Justice, 494 F.3d 255, 259 (2d Cir.2007). We further noted, however, that “[w]e do not lightly infer such omissions on the part of administrative adjudicators.” Id. Because this case does not present “sufficient indicia that the BIA did not consider the limited equitable exceptions to the timely filing of appeals discussed in Zhong Guang Sun,” id., remand is not warranted.

Finally, petitioner argues that the BIA erred in failing to exercise its jurisdiction to reopen her case sua sponte pursuant to 8 C.F.R. § 1003.2(a). “[A] decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review. ...” Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam). Accordingly, we lack jurisdiction to consider this claim.

For the foregoing reasons, the petition for review is DENIED. Having completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.  