Bazuaye v. Holder , 573 F. App'x 71 ( 2014 )

12-3324
Bazuaye v. Holder
BIA
A024 359 599
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of July, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JEROMI H. BAZUAYE, AKA BRADLEY CAIN,
14 AKA JEROMI BAZUAYE, AKA JOROMI
15 BAZUAYE,
16 Petitioner,
17
18 v. 12-3324
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Thomas K. Ragland, Benach Ragland
26 LLP, Washington, D.C.
27
28 OR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Keith I. McManus,
30 Senior Litigation Counsel; Matt A.
31 Crapo, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DISMISSED for lack of jurisdiction.
9 Petitioner Jeromi H. Bazuaye, a native and citizen of
10 Nigeria, seeks review of an August 17, 2012, order of the
11 BIA denying his motion to reconsider and reopen. In re
12 Jeromi H. Bazuaye, No. A024 359 599 (B.I.A. Aug. 17, 2012).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 We review the BIA’s denial of motions to reconsider and
16 reopen for abuse of discretion. See Jin Ming Liu v.
17 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Kaur v. BIA, 413
18 F.3d 232, 233 (2d Cir. 2005) (per curiam). “An abuse of
19 discretion may be found . . . where the [BIA’s] decision
20 provides no rational explanation, inexplicably departs from
21 established policies, is devoid of any reasoning, or
22 contains only summary or conclusory statements; that is to
23 say, where the Board has acted in an arbitrary or capricious
24 manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
25 83, 93 (2d Cir. 2001) (internal citations omitted).
2
1 Although we lack jurisdiction to review a final order
2 of removal against an alien, such as Bazuaye, who is
3 removable for having been convicted of a an aggravated
4 felony, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to
5 review constitutional claims and questions of law, 8 U.S.C.
6 § 1252(a)(2)(D), which are subject to de novo review, Pierre
7 v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). “[W]e lack
8 jurisdiction to review any legal argument that is so
9 insubstantial and frivolous as to be inadequate to invoke
10 federal-question jurisdiction.” Barco-Sandoval v. Gonzales,
11 516 F.3d 35, 40 (2d Cir. 2008) (citation omitted).
12 I. Motion to Reconsider
13 Bazuaye fails to raise a colorable constitutional claim
14 or question of law with respect to the denial of his motion
15 to reconsider as untimely. See Barco-Sandoval, 516 F.3d at
16 40; see also Ke Zhen Zhao, 265 F.3d at 93. Indeed,
17 Bazuaye’s January 2012 motion was filed more than a year
18 after the 30-day period expired in September 2010. See
19 8 C.F.R. § 1003.2(b)(2) (“A motion to reconsider a decision
20 must be filed with the Board within 30 days after the
21 mailing of the Board decision.”); accord 8 U.S.C.
22 § 1229a(c)(6)(B). Although the BIA “may at any time . . .
3
1 reconsider on its own motion any case in which it has
2 rendered a decision,” 8 C.F.R. § 1003.2(a), Bazuaye fails to
3 identify any authority in support of his contention that the
4 filing deadline on motions to reconsider may be equitably
5 tolled. Moreover, while we have recognized that the
6 statutory time limitation on motions to reopen may be
7 equitably tolled on the basis of ineffective assistance of
8 counsel or “where fraud or concealment of the existence of a
9 claim prevents an alien from timely filing [his] motion,”
10 Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008)
11 (citation omitted), Bazuaye’s equitable tolling argument was
12 premised on the fact that he filed his motion after learning
13 about the BIA’s decision in Matter of J.R. Velasquez, 25 I.
14 & N. Dec. 680 (B.I.A. 2012) (establishing guidelines for the
15 admission of evidence to prove criminal convictions in
16 immigration proceedings). Accordingly, Bazuaye’s contention
17 that the BIA erred in failing to equitably toll the time
18 limitation on his motion to reconsider is too “insubstantial
19 and frivolous . . . to invoke federal-question
20 jurisdiction.” Barco-Sandoval, 516 F.3d at 40 (citations
21 omitted).
22
4
1 II. Motion to Reopen
2 Bazuaye also fails to raise a colorable constitutional
3 claim or question of law with respect to the denial of his
4 untimely motion to reopen. See id. An alien seeking to
5 reopen proceedings must file a motion to reopen no later
6 than 90 days after the date on which the final
7 administrative decision was rendered. See 8 U.S.C.
8 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). As the BIA
9 noted, Bazuaye’s January 2012 motion was untimely because it
10 was filed more than year after his order of removal became
11 final in August 2010. See 8 U.S.C. § 1101(a)(47)(B)(i)
12 (defining final order or removal). Although Bazuaye sought
13 reopening to apply for adjustment of status on the basis of
14 an approved visa petition, “untimely motions to reopen to
15 pursue an application for adjustment of status . . . do not
16 fall within any of the statutory or regulatory exceptions to
17 the time limits for motions to reopen.” Matter of Yauri, 25
18 I. & N. Dec. 103, 105 (B.I.A. 2009) (citing 8 U.S.C.
19 § 1229a(c)(7)(C)(ii)-(iv) and 8 C.F.R. § 1003.2(c)(3)).
20 Bazuaye’s assertion that the BIA did not specifically
21 address his request for reopening to apply for adjustment of
22 status is flatly contradicted by the record and is too
23 “insubstantial and frivolous . . . to invoke
5
1 federal-question jurisdiction.” Barco-Sandoval, 516 F.3d at
2 40 (citations omitted). As a result, Bazuaye has failed to
3 raise a reviewable constitutional claim or question of law
4 in connection with the BIA’s denial of his untimely motion
5 to reopen.
6 For the foregoing reasons, the petition for review is
7 DISMISSED. As we have completed our review, the pending
8 motion for a stay of removal in this petition is DISMISSED
9 as moot. The pending request for oral argument in this
10 petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
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