Lumaj v. Holder , 424 F. App'x 56 ( 2011 )

10-1906-ag
Lumaj v. Holder
BIA
A075 836 315
A075 836 316
A075 836 317
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of New
4 York, on the 15th day of June, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 LUIGJ LUMAJ, DRITA LUMAJ, XHOZEF LUMAJ,
14 Petitioners,
15
16 v. 10-1906-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONERS: H. Raymond Fasano, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Blair T. O’Connor, Assistant Director;
27 Holly M. Smith, Senior Litigation
28 Counsel, Office of Immigration
29 Litigation, United States Department of
30 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED.
5 Petitioners Luigj Lumaj, his wife Drita Lumaj, and their
6 son Xhozef Lumaj, all natives and citizens of Albania, seek
7 review of an April 12, 2010, decision of the BIA denying their
8 motion to reopen. In re Luigj Lumaj, Drita Lumaj, Xhozef
9 Lumaj, Nos. A075 836 315/316/317 (B.I.A. Apr. 12, 2010). We
10 assume the parties’ familiarity with the underlying facts and
11 procedural history of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
14 Cir. 2005) (per curiam). It is undisputed that petitioners’
15 motion to reopen was untimely filed as the agency’s final
16 order of removal was entered in 2003 and the petitioners did
17 not file their motion to reopen until 2010, well beyond the
18 90-day deadline. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
19 § 1003.2(c)(2). Moreover, petitioners do not argue that one
20 of the statutory or regulatory exceptions excused their
21 untimely filing.
22
2
1 Instead, petitioners argue that the BIA erred in
2 declining to reopen their removal proceedings sua sponte. The
3 BIA’s decision regarding whether to reopen removal proceedings
4 sua sponte is “entirely discretionary” and beyond the scope of
5 our review. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
6 2006) (per curiam). However, “where the Agency may have
7 declined to exercise its sua sponte authority because it
8 misperceived the legal background and thought, incorrectly,
9 that a reopening would necessarily fail, remand to the Agency
10 for reconsideration in view of the correct law is
11 appropriate.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
12 2009). Here, petitioners argue that the BIA declined to
13 reopen their removal proceedings sua sponte based on its
14 misperception of the agency’s regulations as requiring an
15 alien to demonstrate past persecution in order to establish
16 eligibility for humanitarian asylum. Petitioners’ argument is
17 without merit.
18 The relevant regulation provides that:
19 An applicant described in paragraph (b)(1)(i) of
20 this section . . . may be granted asylum, in the
21 exercise of the decision-maker’s discretion, if:
22
23 (A) The applicant has demonstrated
24 compelling reasons for being unwilling
25 or unable to return to the country
26 arising out of the severity of the
27 past persecution; or
3
1 (B) The applicant has established that
2 there is a reasonable possibility that
3 he or she may suffer other serious
4 harm upon removal to that country.
5
6 8 C.F.R. § 1208.13(b)(1)(iii). Petitioners contend that
7 because subsection (B) does not refer to past persecution, an
8 alien can qualify for humanitarian asylum based on a
9 reasonable possibility of suffering serious harm upon removal
10 without a demonstration of past persecution. This reading of
11 the regulation ignores the sentence preceding subsections (A)
12 and (B) limiting the applicability of those subsections to
13 applicants “described in paragraph (b)(1)(i),” namely
14 applicants who have suffered past persecution, but who are
15 ineligible for asylum because either there has been a
16 fundamental change in circumstances such that the applicant no
17 longer has a well-founded fear of persecution or the applicant
18 can relocate within his or her country of nationality to avoid
19 future persecution. 8 C.F.R. § 1208.13(b)(1)(i), (iii).
20 Thus, contrary to petitioners’ contention, the BIA did not
21 misperceive the law by stating that an applicant must
22 demonstrate past persecution in order to demonstrate
23 eligibility for humanitarian asylum. See 8 C.F.R.
24 § 1208.13(b)(1)(iii); see also Kone v. Holder, 596 F.3d 141,
25 146 (2d Cir. 2010) (recognizing that humanitarian asylum “is
4
1 reserved for persecuted aliens whose persecution was
2 particularly severe or who may suffer ‘other serious harm’ if
3 removed”) (quoting 8 C.F.R. § 1208.13(b)(1)(iii))(emphasis
4 added). Accordingly, we lack jurisdiction to review the BIA’s
5 decision declining to reopen petitioners’ proceedings sua
6 sponte. See Mahmood, 570 F.3d at 469; Ali, 448 F.3d at 517-
7 18.
8 For the foregoing reasons, the petition for review is
9 DISMISSED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition is
11 VACATED, and any pending motion for a stay of removal in this
12 petition is DISMISSED as moot. Any pending request for oral
13 argument in this petition is DENIED in accordance with Federal
14 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
15 Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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