Pankratov v. Holder , 447 F. App'x 261 ( 2012 )

10-4271-ag
Pankratov v. Holder
BIA
A073 184 371
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
NIKOLAY PANKRATOV
Petitioner,
v. 10-4271-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Alexander J. Segal, Grinberg & Segal,
P.L.L.C., New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Melissa Neiman-Kelting, Senior
Litigation Counsel; Stefanie Notarino
Hennes, Trial Attorney, Office of
Immigration Litigation, Civil Division,
United States Department of Justice,
Washington, D.C.
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
DENIED.
Petitioner Nikolay Pankratov, a native of Ukraine and
citizen of Russia, seeks review of a September 29, 2010, order
of the BIA denying his motion to reopen. In re Nikolay
Pankratov, No. A073 184 371 (B.I.A. Sep. 29, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). Here, because all of Pankratov’s evidence and
arguments had previously been before the BIA in connection
with his first motion to reopen, the BIA reasonably denied his
motion as it repeated arguments that it had already rejected.
See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented at
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the former hearing . . .”); Jin Ming Liu v. Gonzales, 439 F.3d
109, 111 (2d Cir. 2006) (per curiam) (“The BIA does not abuse
its discretion by denying a motion to reconsider where the
motion repeats arguments that the BIA has previously
rejected.”). Moreover, as the BIA noted, insofar as
Pankratov’s motion sought reconsideration of the BIA’s October
2009 decision, it was untimely because it was not filed within
30 days of that decision. See 8 U.S.C. § 1229a(c)(6)(B); 8
C.F.R. § 1003.2(b)(2).
In addition to the fact that we find no abuse of
discretion in the BIA’s denial of the motion whether construed
as a request to reopen or a request for reconsideration, we
lack jurisdiction to consider Pankratov’s challenge to the
agency’s decision not to exercise its sua sponte authority as
that decision is entirely discretionary. See Ali, 448 F.3d at
518. Although remand may be appropriate “where 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,” Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009), Pankratov has not argued
that the BIA misperceived the law.
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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