Baldi v. Holder , 490 F. App'x 372 ( 2012 )

11-2797
Baldi v. Holder
BIA
A012 099 608
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
4 New York, on the 1st day of August, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12 BENIAMINO BALDI,
13 Petitioner,
14
15 v. 11-2797
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20
21 _____________________________________
22
23 FOR PETITIONER: Beniamino Baldi, Pro Se, Gadsden,
24 Alabama.*
*
Following the withdrawal of Baldi’s previous counsel,
Millicent Y. Clarke, replacement counsel did not file a
notice of appearance within the designated 30-day period.
Accordingly, Baldi proceeds pro se.
1
2 FOR RESPONDENT: Tony West, Assistant Attorney
3 General; Emily Anne Radford,
4 Assistant Director; Sarah L. Vuong,
5 Trial Attorney, Office of
6 Immigration Litigation, United
7 States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Beniamino Baldi, a native and citizen of
15 Italy, seeks review of the June 7, 2011, order of the BIA
16 denying his motion to reopen. In re Beniamino Baldi, No.
17 A012 099 608 (B.I.A. June 7, 2011). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 of the case.
20 While we generally lack jurisdiction to review a final
21 order of removal issued against an alien, such as Baldi, who
22 was found removable by reason of having committed an
23 aggravated felony, we retain jurisdiction to review
24 colorable constitutional claims or questions of law. See
25 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d 113,
26 115 (2d Cir. 2004) (recognizing that orders denying motions
27 to reopen are treated as final orders of removal). Baldi
2
1 argues that the BIA abused its discretion in denying his
2 motion to reopen and reconsider because he demonstrated
3 sufficient positive equities to merit a discretionary grant
4 of relief under former section 212(c) of the Immigration and
5 Nationality Act. This argument is without merit.
6 An applicant may file one motion to reopen within 90
7 days of the date on which a final administrative decision
8 was rendered in the proceeding sought to be reopened, see
9 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2),
10 and may file a motion to reconsider within 30 days of an
11 order, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).
12 There is no dispute that Baldi’s May 2011 motion was
13 untimely because the agency issued the final administrative
14 order in January 2011. Contrary to Baldi’s assertion, there
15 are no exceptions for the time limitation imposed on motions
16 to reconsider, and a motion based on additional evidence to
17 support a request for discretionary grant of 212(c) does not
18 fall within any exception provided for motions to reopen.
19 See 8 U.S.C. § 1229a(c)(6), (7)(C); 8 C.F.R. § 1003.2(b)(2),
20 (c)(3). Nor is there an exception for what Baldi calls
21 “good cause” due to the delays he experienced in collecting
22 new evidence. See 8 U.S.C. § 1229a(7)(C); 8 C.F.R.
23 § 1003.2(c)(3). Therefore, whether construed as a motion to
3
1 reopen or to reconsider, the BIA did not abuse its
2 discretion in denying Baldi’s motion as untimely. See
3 8 U.S.C. § 1229a(c)(6)(B), (7)(C).
4 Furthermore, we lack jurisdiction to review Baldi’s
5 challenge to the agency’s discretionary denial of section
6 212(c) relief and the BIA’s discretionary denial of a
7 request to reopen sua sponte, absent presentation of a
8 constitutional claim or question of law. See Avendano-
9 Espejo v. Dep’t of Homeland Sec., 448 F.3d 503, 505 (2d Cir.
10 2006); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
11 We also lack jurisdiction to grant Baldi’s request for a
12 writ of mandamus because a petition for review is the
13 exclusive means to obtain review of the BIA’s adverse
14 determination. See 8 U.S.C. § 1252(a)(5).
15 For the foregoing reasons, the petition for review is
16 DENIED. Any pending request for oral argument in this
17 petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
4