Saha v. Lynch ( 2016 )

15-1939
Saha v. Lynch
BIA
Reid, IJ
A045 050 928
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of September, two thousand sixteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 PARTHA SAHA,
14 Petitioner,
15
16 v. 15-1939
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Naresh M. Gehi, Gehi and
24 Associates,Forest Hills, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John W.
28 Blakeley, Assistant Director;
29 Patricia E. Bruckner, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 DENIED.
5 Petitioner Partha Saha, a native and citizen of Bangladesh,
6 seeks review of a June 9, 2015, decision of the BIA affirming
7 an Immigration Judge’s (“IJ”) August 18, 2014, denial of his
8 motion to reopen. In re Partha Saha, No. A045 050 928 (B.I.A.
9 June 9, 2015), aff’g No. A045 050 928 (Immigr. Ct. Batavia Aug.
10 18, 2014). We assume the parties’ familiarity with the
11 underlying facts and procedural history in this case.
12 Under the circumstances of this case, we have reviewed the
13 IJ’s decision as supplemented by the BIA. See Yan Chen v.
14 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
15 denial of a motion to reopen for abuse of discretion. Ali v.
16 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We lack
17 jurisdiction, however, to review a final order of removal,
18 including an order denying a motion to reopen, against an alien,
19 such as Saha, who is removable by reason of having committed
20 an aggravated felony or a controlled substance offense; we
21 retain jurisdiction to consider constitutional claims and
22 questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Durant
23 v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2005).
2
1 The petition is denied because the agency did not abuse its
2 discretion by denying Saha’s motion to reopen as untimely and
3 Saha has not identified any constitutional decision. Saha’s
4 2014 motion to reopen was untimely because it was filed more
5 than 90 days after the IJ’s 2010 decision, which was the final
6 administrative order. 8 U.S.C. § 1229a(c)(7)(C)(i). There
7 are exceptions to this time limit if an alien can demonstrate
8 ineffective assistance of counsel and due diligence in seeking
9 to reopen on that basis, see Iavorski v. U.S. INS, 232 F.3d 124,
10 135 (2d Cir. 2000), or if an alien can show that conditions in
11 his country of removal have materially changed so as to render
12 him prima facie eligible for asylum, see 8 U.S.C.
13 § 1229a(c)(7)(C)(ii).
14 Although Saha raised both of these exceptions before the
15 agency, he raises only changed country conditions in his brief
16 to this Court. However, his argument is brief and points to
17 no evidence that the agency overlooked or misconstrued.
18 Accordingly, he has not identified any reviewable challenge to
19 the BIA’s country conditions determination, but instead “merely
20 quarrels over the correctness of the factual findings . . . .”
21 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
22 Cir. 2006). Additionally, Saha’s argument that his son will
23 suffer harm if he (Saha) is removed is not properly before us
3
1 because it was not raised before the BIA. See Lin Zhong v. U.S.
2 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
3 Finally, as the Government argues, we lack jurisdiction
4 over any exercise of prosecutorial discretion. 8 U.S.C.
5 § 1252(a), (g) (“[N]o court shall have jurisdiction to hear any
6 cause or claim . . . arising from the decision or action by the
7 Attorney General to commence proceedings, adjudicate cases, or
8 execute removal orders against any alien under this chapter.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
4