Bah v. Garland ( 2022 )

19-4102
Bah v. Garland
BIA
A096 241 218
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 20th day of January, two thousand twenty-
5 two.
6
7 PRESENT:
8 DEBRA ANN LIVINGSTON,
9 Chief Judge,
10 MICHAEL H. PARK,
11 STEVEN J. MENASHI,
12 Circuit Judges.
13 _____________________________________
14
15 ABDOULAYE BAH,
16 Petitioner,
17
18 v. 19-4102
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq.,
26 New York, NY.
27
28 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
29 Attorney General; Claire L.
30 Workman, Senior Litigation
1 Counsel; Scott M. Marconda, Trial
2 Attorney, Office of Immigration
3 Litigation, United States
4 Department of Justice, Washington,
5 DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED in part and DISMISSED in part.
11 Petitioner Abdoulaye Bah, a native and citizen of Guinea,
12 seeks review of a November 18, 2019 decision of the BIA
13 denying his motion to reopen. See In re Abdoulaye Bah, No.
14 A096 241 218 (B.I.A. Nov. 18, 2019). We assume the parties’
15 familiarity with the underlying facts and procedural history.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. See Zhao Quan Chen v. Gonzales, 492
18 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion
19 if its “decision provides no rational explanation,
20 inexplicably departs from established policies, is devoid of
21 any reasoning, or contains only summary or conclusory
22 statements; that is to say, where the Board has acted in an
23 arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232,
24 233–34 (2d Cir. 2005) (internal quotation marks omitted).
2
1 The BIA did not abuse its discretion by denying Bah’s
2 motion to reopen. It is undisputed that Bah’s 2019 motion
3 to reopen was time barred because he filed it 14 years after
4 the agency issued his final order of removal in 2005. See
5 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for
6 motions to reopen); 8 C.F.R. § 1003.2(c)(2) (same). His
7 eligibility for adjustment of status does not implicate any
8 exception to the filing deadline. See 8 U.S.C.
9 § 1229a(c)(7)(C)(ii)-(iv) (listing exceptions); 8 C.F.R.
10 § 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103,
11 105 (B.I.A. 2009). Bah’s argument that we should follow the
12 Ninth Circuit in declining to follow Matter of Yauri fails
13 because the Ninth Circuit did not determine that eligibility
14 for adjustment of status is an exception to the time
15 limitation; rather, that court held that the BIA had authority
16 to reopen sua sponte, regardless of what agency had
17 jurisdiction over the pending adjustment of status
18 application. See Singh v. Holder, 771 F.3d 647, 652–53 (9th
19 Cir. 2014).
20 The BIA may reopen sua sponte despite the time
21 limitation. See 8 C.F.R. § 1003.2(a) (version in effect
3
1 until Jan. 15, 2021). But the BIA “invoke[s] [its] sua sponte
2 authority sparingly, treating it . . . as an extraordinary
3 remedy reserved for truly exceptional situations.” In re G-
4 D-, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). And we lack
5 jurisdiction to review the BIA’s “entirely discretionary”
6 decision not to reopen a case sua sponte under § 1003.2(a).
7 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Although
8 we may remand to the BIA if it “misperceived the legal
9 background and thought, incorrectly, that a reopening would
10 necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d
11 Cir. 2009), such a circumstance does not exist here. The BIA
12 did not speak to the merits of Bah’s adjustment application,
13 it denied reopening only because he did not establish
14 exceptional circumstances.
15 For the foregoing reasons, the petition for review is
16 DENIED in part and DISMISSED in remaining part. All pending
17 motions and applications are DENIED and stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
4