10-2351-ag
Mahmood v. Holder
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 21st day of December, two thousand eleven.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
RAYMOND J. LOHIER, JR.
Circuit Judges.
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TAHIR MOHAMMAD MAHMOOD,
AKA Muhammad Tahir Mahmood,
AKA Muhammad Tahir Hammoud,
Petitioner,
v. 10-2351-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONER: Tahir Mohammad Mahmood, pro se, Jamaica, New
York.
FOR RESPONDENT: Margot L. Nadel, Trial Attorney, M. Jocelyn Lopez
Wright, Senior Litigation Counsel, Office of Immigration
Litigation; Tony West, Assistant Attorney General,
United States Department of Justice, Washington, D.C.
1
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 for lack of jurisdiction.
Petitioner, a native and citizen of Pakistan, seeks review of a May 27, 2010 order of
the BIA denying his motion to reconsider the BIA’s December 10, 2009 order, following
remand from this Court, declining to exercise its sua sponte authority to reopen removal
proceedings. See In re Tahir Mohammad Mahmood, No. A095 961 997 (B.I.A. May 27,
2010); see also Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009); In re Tahir Mohammad
Mahmood, No. A095 961 997 (B.I.A. Dec. 10, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history, which we reference only as necessary to
explain our decision to dismiss the petition for review.
As an initial matter, our review is limited to the BIA’s May 2010 denial of
reconsideration, as Mahmood’s petition for review is timely filed only as to that order. See
Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir. 2007) (concluding that where petition is filed
only to review BIA’s denial of reopening or reconsideration, reviewing court’s jurisdiction
is limited to decision not to reopen or reconsider); see also Stone v. INS, 514 U.S. 386, 405
(1995) (concluding that BIA’s denial of appeal and denial of reconsideration are two separate
orders from which separate petitions of review must be taken). Accordingly, to the extent
Mahmood’s brief challenges the BIA’s December 2009 determination that his motion to
reopen was untimely, we lack jurisdiction to consider these arguments, which Mahmood did
2
not raise in his motion for reconsideration. Moreover, to the extent that Mahmood’s brief
may be construed to argue that he or his wife will face persecution if he were removed to
Pakistan, we similarly do not have jurisdiction. Mahmood does not appear to have raised this
claim before the agency at all, let alone in his motion for reconsideration.
The Government maintains that because Mahmood’s motion for reconsideration
challenged only the exercise of the BIA’s sua sponte authority to reopen the removal
proceedings—a determination unreviewable by this court—we lack jurisdiction to review the
remainder of his petition.1 We agree.
As we noted in our decision resolving Mahmood’s first petition for review, “we are
without jurisdiction to review the Agency’s failure to reopen removal proceedings sua
sponte.” Mahmood v. Holder, 570 F.3d at 469 (citing Ali v. Gonzales, 448 F.3d 515, 518
(2d Cir. 2006)). In that decision, we remanded Mahmood’s case to the agency to consider,
in light of the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008), “whether
it would still decline to exercise its sua sponte authority to reopen Mahmood’s removal
proceedings.” Mahmood v. Holder, 570 F.3d at 471. In so doing, we expressly recognized
that, on remand, the agency could “choose not to exercise its sua sponte authority,” and “such
a decision would be unreviewable by us.” Id. That is precisely what happened.
1
The BIA sua sponte construed Mahmood’s motion for reconsideration as a second
motion to reopen, insofar as the motion sought to introduce an affidavit from Mahmood’s
wife. The BIA denied this construed motion to reopen as number-barred. [CAR 3] See 8
C.F.R. § 1003.2(c). Mahmood’s brief does not challenge this determination, and we do not
consider it further.
3
For the foregoing reasons, the petition for review is DISMISSED for lack of
jurisdiction. As we have completed our review, any stay of removal that the Court
previously granted in this petition is VACATED, and any pending motion for a stay of
removal in this petition is DISMISSED as moot.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
4