Case: 09-60635 Document: 00511156476 Page: 1 Date Filed: 06/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2010
No. 09-60635
Summary Calendar Lyle W. Cayce
Clerk
MUHAMMAD SARFRAZ KHAN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 008 104
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Muhammad Sarfraz Khan, a native and citizen of Pakistan, was ordered
removed in 2005. The Board of Immigration Appeals (BIA) affirmed and denied
reconsideration, and we rejected Khan’s petition for review. Khan v. Gonzales,
243 F. App’x 24, 25 (5th Cir. 2007). Two years after the removal order, Khan
filed a motion to reopen asserting ineffective assistance of counsel and changed
circumstances. The BIA denied the motion as untimely and refused to exercise
its authority to reopen sua sponte. We dismissed Khan’s petition for review in
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60635 Document: 00511156476 Page: 2 Date Filed: 06/28/2010
No. 09-60635
part because we lacked jurisdiction to consider the BIA’s discretionary denial of
a motion to reopen sua sponte. Khan v. Holder, 311 F. App’x 718, 718-19 (5th
Cir. 2009).
Khan has now filed a second motion to reopen, again asserting ineffective
assistance of counsel and changed circumstances. The BIA denied this motion
as untimely and number-barred and once more declined to exercise its authority
to reopen proceedings sua sponte. Khan now seeks our review, reasserting the
claims he made previously that the time and number limitations for motions to
reopen may be excused based on ineffective assistance of counsel and his
changed circumstances.
It is undisputed that Khan’s motion is both untimely and numerically
barred. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). The BIA may
reopen a matter sua sponte at any time but the decision to do so is entirely
within its discretion. 8 C.F.R. § 1003.2(a). As we previously explained, we lack
jurisdiction to review the BIA’s wholly discretionary decision to refuse to reopen
Khan’s proceedings sua sponte. See Khan, 311 F. App’x at 719; Ramos-Bonilla
v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008); Enriquez-Alvarado v. Ashcroft,
371 F.3d 246, 249-50 (5th Cir. 2004). To the extent that Khan argues that the
denial of the motion to reopen violates his due process rights, he has no
constitutionally protected interest in discretionary relief. See Altamirano-Lopez
v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
For the foregoing reasons, we DISMISS Khan’s petition in part and we
DENY it in part. We DENY the Government’s motion for summary affirmance
and, alternatively, for an extension of time to file a brief, as unnecessary.
Finally, we CAUTION Khan that future repetitive or frivolous filings may result
in the imposition of sanctions.
2