Baez-Duran v. Garland ( 2023 )

20-3227
Baez-Duran v. Garland
BIA
Ruehle, IJ
A095 421 281
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 Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 23rd day of May, two thousand twenty-three.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
STEVEN J. MENASHI,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
JOSE RAMON BAEZ-DURAN,
Petitioner,
v. 20-3227
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Reuben S. Kerben, Kew Gardens,
NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy
Assistant Attorney General; Kohsei
Ugumori, Senior Litigation
Counsel; Nehal H. Kamani, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 Jose Ramon Baez-Duran, a native and citizen
of the Dominican Republic, seeks review of an August 26, 2020
decision of the BIA affirming an October 7, 2019 decision of
an Immigration Judge (“IJ”) denying his second motion to
reopen. In re Jose Ramon Baez-Duran, No. A 095 421 281
(B.I.A. Aug. 26, 2020), aff’g No. A 095 421 281 (Immigr. Ct.
Buffalo Oct. 7, 2019). We assume the parties’ familiarity
with the underlying facts and procedural history.
We have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
Cir. 2005).
Baez-Duran seeks review of his second motion to rescind
or reopen, filed 17 years after being ordered removed in
absentia. He does not allege that he meets the statutory
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requirements of a motion to rescind or reopen. See 8 U.S.C.
§ 1229a(b)(5)(C), (c)(7). He instead invokes the agency’s
regulatory authority to reopen sua sponte despite the time
and number limitations on his motion. See 8 C.F.R.
§§ 1003.2(a), 1000.23(b)(1) (versions in effect until January
15, 2021). However, the agency’s exercise of that authority
is “entirely discretionary” and not subject to judicial
review. Li Chen v. Garland, 43 F.4th 244, 252 (2d Cir. 2022)
(quotation marks omitted).
There is one exception to the limit on our jurisdiction:
“[W]here 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 v. Holder, 570 F.3d
466, 469 (2d Cir. 2009); see also Li Chen, 43 F.4th at 253.
However, there was no such misperception here. As the BIA
found, Baez-Duran did not explain his failure to appear at
his initial removal proceedings, he did not claim lack of
notice or dispute his removability, his motion was untimely,
and his application to adjust status did not provide a
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statutory basis to reopen. He does not allege error in the
agency’s conclusions about his eligibility for adjustment of
status or waivers. Moreover, contrary to Baez-Duran’s
assertions, the agency did not misperceive the law in
concluding that hardship generally is not a sufficient basis
for sua sponte reopening. See Li Yong Zheng v. U.S. Dep’t
of Justice, 416 F.3d 129, 131 (2d Cir. 2005) (“The BIA
exercises its sua sponte authority sparingly, treating it not
as a general remedy for any hardships created by enforcement
of the time and number limits in the motions regulations, but
as an extraordinary remedy reserved for truly exceptional
situations.” (quotation marks omitted)).
For the foregoing reasons, the petition for review is
DISMISSED. All pending motions and applications are DENIED
and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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