Gashi v. Holder

Jun 22, 2010
09-4290
Reporters:
Before:
Jon O. Newman, José A. Cabranes, Debra Ann Livingston

SUMMARY ORDER

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, 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.

Furthermore, contrary to Gashi‘s argument, the Supreme Court, in Kucana v. Holder, — U.S. —, 130 S.Ct. 827, — L.Ed.2d — (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).