11-829
Gyulnazaryan v. Holder
BIA
A097 703 120
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of July, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 AMAHITE GYULNAZARYAN,
14 Petitioner,
15
16 v. 11-829
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Tatiana S. Aristova, Plainsboro, NJ.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Luis E. Perez,
27 Senior Litigation Counsel; Elizabeth
28 D. Kurlan, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED in part and DISMISSED in part.
5 Petitioner Amahite Gyulnazaryan, a native and citizen
6 of Armenia, seeks review of a January 31, 2011, decision of
7 the BIA denying her motion to reconsider and reopen. In re
8 Amahite Gyulnazaryan, No. A097 703 120 (B.I.A. Jan. 31,
9 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen or
12 reconsider for abuse of discretion. See Ali v. Gonzales,
13 448 F.3d 515, 517 (2d Cir. 2006) (per curiam); Jin Ming Liu
14 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam).
15 Gyulnazaryan does not challenge the BIA’s findings that:
16 (1) as a motion to reopen, her motion was untimely and
17 number-barred; and (2) as a motion to reconsider, her motion
18 failed to specify a factual or legal error in its June 2010
19 denial of reopening on the ground that she was not prima
20 facie eligible for adjustment of status because an immigrant
21 visa was not immediately available to her. Therefore,
22 Gyulnazaryan has waived any challenge to the BIA’s
23 dispositive findings that she did not satisfy the standards
2
1 for reopening or reconsideration. See Shunfu Li v. Mukasey,
2 529 F.3d 141, 146 (2d Cir. 2008) (where petitioner fails to
3 challenge dispositive agency findings, “any challenge to
4 these findings is . . . waived.”).
5 Gyulnazaryan argues principally that the BIA should
6 have considered, on its own initiative, that a visa in her
7 category, spouses of lawful permanent residents, was
8 available for three months while her motion to reconsider
9 and reopen was pending at the BIA, and thus that she was
10 eligible for adjustment during this period even though the
11 category retrogressed and she no longer had a visa
12 immediately available to her by the time the BIA denied her
13 motion in January 2011. This claim is a challenge to the
14 BIA’s denial of sua sponte reopening pursuant to 8 C.F.R.
15 § 1003.2(a), which is an “entirely discretionary” decision
16 which we lack jurisdiction to review. See Ali, 448 F.3d at
17 518. Furthermore, as the government notes, this claim is
18 unexhausted, as Gyulnazaryan did not raise it to the BIA
19 either in her original motion to reconsider and reopen or in
20 a supplemental filing after her visa category became
21 current. Therefore, we decline to consider this claim. See
22 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice,
23 480 F.3d 104, 107 n.1 (2d Cir. 2007).
3
1 For the foregoing reasons, the petition for review is
2 DENIED in part and DISMISSED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
4