Ruiz Ruiz v. Holder ( 2011 )

10-4614-ag
Ruiz Ruiz v. Holder
BIA
A098 478 201
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 New
4 York, on the 29th day of November, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 JUAN JAIRO RUIZ RUIZ,
14 Petitioner,
15
16 v. 10-4614-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Glenn L. Formica, New Haven,
24 Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Richard M. Evans, Assistant Director;
28 Benjamin J. Zeitlin, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, 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
4 is DISMISSED.
5 Petitioner Juan Jairo Ruiz Ruiz, a native and citizen of
6 Colombia, seeks review of an October 19, 2010, order of the
7 BIA denying his motions to reconsider and reopen. In re Juan
8 Jairo Ruiz Ruiz, No. A098 478 201 (B.I.A. Oct. 19, 2010). We
9 assume the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 It is undisputed that Ruiz Ruiz’s motion to reopen was
12 untimely and number-barred because it was filed more that 90
13 days after the agency’s final administrative decision and it
14 was his second motion to reopen. See 8 U.S.C.
15 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). Moreover,
16 Ruiz Ruiz does not argue that the BIA should have found the
17 time and numerical limitations for filing his motion excused
18 by one of the statutory or regulatory exceptions; rather, his
19 only contention is that the BIA abused its discretion by
20 declining to exercise its sua sponte reopening authority. We
21 lack jurisdiction to consider the BIA’s “entirely
22 discretionary” decision regarding whether to reopen removal
2
1 proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515,
2 518 (2d Cir. 2006); accord Mahmood v. Holder, 570 F.3d 466,
3 469 (2d Cir. 2009); see also Luna v. Holder, 637 F.3d 85, 96
4 (2d Cir. 2011) (stating that court lacks jurisdiction to
5 review denials of “regulatory (i.e., sua sponte) motions to
6 reopen” because they “are committed to agency discretion”).
7 Although remand is appropriate “where the Agency may have
8 declined to exercise its sua sponte authority because it
9 misperceived the legal background and thought, incorrectly,
10 that a reopening would necessarily fail,” Mahmood, 570 F.3d at
11 469, the BIA made no such error here. See Matter of Velarde-
12 Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (holding that the
13 agency may grant a motion to reopen in the exercise of its
14 discretion to pursue an adjustment application if, among other
15 factors, the motion was timely filed and not numerically
16 barred); see also Matter of Yauri, 25 I. & N. Dec. 103, 105
17 (BIA 2009) (emphasizing “that untimely motions to reopen to
18 pursue an application for adjustment of status . . . do not
19 fall within any of the statutory or regulatory exceptions to
20 the time limits for motions to reopen before the Board and
21 will ordinarily be denied”) (citing 8 U.S.C.
22 § 1229a(c)(7)(C)(ii)-(iv) and 8 C.F.R. § 1003.2(c)(3)).
3
1 Ruiz Ruiz does not challenge the BIA’s denial of his
2 motion to reconsider.
3 For the foregoing reasons, the petition for review is
4 DISMISSED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition is
6 VACATED, and any pending motion for a stay of removal in this
7 petition is DISMISSED as moot. Any pending request for oral
8 argument in this petition is DENIED in accordance with Federal
9 Rule of Appellate Procedure 34(a)(2), and Second Circuit Local
10 Rule 34(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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