09-4290-ag
Gashi v. Holder
BIA
A 079 318 346
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22 nd day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
MUSTAFE GASHI,
Petitioner,
09-4290-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gl en n L. F or mi ca, New Ha v e n,
Connecticut.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Jennifer J. Keeney,
Senior Litigation Counsel; Jessica
R.C. Malloy, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DISMISSED.
Petitioner Mustafe Gashi, a native and citizen of the
former Yugoslavia, seeks review of a September 16, 2009, order
of the BIA denying his motion to reopen. In re Mustafe Gashi,
No. A 079 318 346 (B.I.A. Sept. 16, 2009). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Gashi’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 Gashi 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,
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469 (2d Cir. 2009) (“Because Mahmood’s untimely motion to
reopen was not excused by any regulatory exception, her 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 determination as to whether it will exercise its sua
sponte authority is entirely discretionary and thus beyond the
scope of our jurisdiction. See Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006). However, in Mahmood v. Holder, we found
that “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, 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). There
is no indication in this case that the BIA misperceived the
law in declining to reopen Gashi’s proceedings. To the
contrary, the BIA properly denied Gashi’s untimely motion as
a matter of discretion because it found that he failed to
establish exceptional circumstances that would warrant
reopening. See Ali, 448 F.3d at 517.
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Furthermore, contrary to Gashi’s argument, the Supreme
Court, in Kucana v. Holder, 130 S. Ct. 827 (2010),
“express[ed] no opinion on whether federal courts may review
the Board’s decision not to reopen removal proceedings sua
sponte,” noting that “Courts of Appeals have held that such
decisions are unreviewable because sua sponte reopening is
committed to agency discretion by law.” See id. at 839 n.18.
Therefore, because the Supreme Court expressly declined to
reach the issue, Ali remains good law, and we thus lack
jurisdiction to consider the BIA’s discretionary denial of
Gashi’s untimely motion to reopen. See Ali, 448 F.3d at 517.
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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