16-1343
Woozencroft v. Sessions
BIA
A205 497 485
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 6th day of December, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DAMIAN RUDOLPH WOOZENCROFT, AKA
14 RICHARD BLACKWELL,
15 Petitioner,
16
17 v. 16-1343
18 NAC
19 JEFFERSON B. SESSIONS III, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Mikhail Izrailev (and Parisa
25 Karaahmet, on the brief), Fragomen,
26 Del Rey, Bernsen & Loewy, LLP, New
27 York, N.Y.
28
29 FOR RESPONDENT: Chad A. Readler, Acting Assistant
30 Attorney General; Claire L. Workman,
31 Senior Litigation Counsel; Jane T.
32 Schaffner, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Damian Rudolph Woozencroft, a native and
10 citizen of Jamaica, seeks review of a March 18, 2016, decision
11 of the BIA denying his motions to reconsider and reopen. In
12 re Damian Rudolph Woozencroft, No. A205 497 485 (B.I.A. Mar.
13 18, 2016). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We review the BIA’s denial of motions to reconsider and
16 reopen for abuse of discretion. See Zhao Quan Chen v. Gonzales,
17 492 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion
18 if its “decision provides no rational explanation, inexplicably
19 departs from established policies, is devoid of any reasoning,
20 or contains only summary or conclusory statements.” Kaur v.
21 BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (quoting Ke Khen Zhao
22 v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2005)).
23 Motions to reconsider must “specify[] the errors of fact
24 or law in the prior Board decision.” 8 C.F.R. § 1003.2(b)(1).
2
1 “A motion to reopen proceedings shall not be granted unless it
2 appears to the B[IA] that evidence sought to be offered is
3 material and was not available and could not have been
4 discovered or presented at the former hearing.” Id.
5 § 1003.2(c)(1). The BIA “ordinarily will not grant [a motion
6 to reopen] unless the movant has met the ‘heavy burden’ of
7 demonstrating a likelihood that the new evidence presented
8 would alter the result in the case.” Li Yong Cao v. U.S. Dep’t
9 of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (quoting Matter
10 of Coelho, 20 I. & N. Dec. 464, 471-72 (B.I.A. 1992)).
11 First, the BIA did not abuse its discretion in denying
12 Woozencroft’s motion to reconsider its denial of his third
13 briefing extension request. See Kaur, 413 F.3d at 233-34.
14 Although Woozencroft reiterated in his motion that he was
15 awaiting surgery and could not file a brief because of his poor
16 vision, he did not “specify[] [any] errors of fact or law in
17 the prior Board decision” denying his briefing extension
18 request as required. 8 C.F.R. § 1003.2(b)(1). Therefore,
19 the BIA did not abuse its discretion in denying reconsideration.
20 See id.; Kaur, 413 F.3d at 233-34. Further, as the Government
21 points out, we previously concluded that “[t]he [BIA’s] denial
22 of a [third] briefing extension was not a due process
3
1 violation.” 2d Cir. 16-469, doc. 46 (Order). We adhere to
2 that determination as the law of the case. Johnson v. Holder,
3 564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case doctrine
4 commands that ‘when a court has ruled on an issue, that decision
5 should generally be adhered to by that court in subsequent
6 stages in the same case’ unless ‘cogent and compelling reasons
7 militate otherwise.’” (quoting United States v. Quintieri, 306
8 F.3d 1217, 1225 (2d Cir. 2002))).
9 Second, the BIA did not abuse its discretion in denying
10 Woozencroft’s motion to reopen. Woozencroft reiterated in his
11 motion his desire to submit a brief and additional evidence;
12 however, in neither his motion to reopen nor his brief in this
13 Court does Woozencroft identify the additional evidence he
14 sought to submit. The BIA did not abuse its discretion in
15 denying reopening because Woozencroft did not support his
16 motion with any new evidence and therefore failed to
17 “demonstrat[e] a likelihood that the new evidence presented
18 would alter the result in the case.” See Li Yong Cao, 421 F.3d
19 at 156; 8 C.F.R. § 1003.2.
20 Lastly, to the extent that the BIA construed Woozencroft’s
21 motions as requests to reconsider or reopen sua sponte, we lack
22 jurisdiction to review the BIA’s “entirely discretionary”
4
1 decision to decline to exercise its sua sponte authority. See
2 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also 8
3 C.F.R. § 1003.2(a). Although there is an exception allowing
4 remand “where the Agency may have declined to exercise its sua
5 sponte authority because it misperceived the legal background
6 and thought, incorrectly, that a reopening would necessarily
7 fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), this
8 exception does not apply here, and Woozencroft does not contend
9 that it does.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5