Khan v. Garland ( 2022 )

20-471 (L)
Khan v. Garland
BIA
Ruehle, IJ
A206 652 257
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 Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 7th day of July, two thousand twenty-two.
PRESENT:
DEBRA ANN LIVINGSON,
Chief Judge,
JON O. NEWMAN,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
ESFAK AHMED KHAN,
Petitioner,
v. 20-471 (L),
20-2576 (Con)
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Anne E. Doebler, Esq., Buffalo,
NY.
FOR RESPONDENT: Brian Boyton, Acting Assistant
Attorney General; Zoe J. Heller,
Senior Litigation Counsel; Rodolfo
D. Saenz, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petitions for review
are DISMISSED.
Petitioner Esfak Ahmed Khan, a native and citizen of
Bangladesh, seeks review of a January 9, 2020, decision of
the BIA denying Khan’s motion to remand and affirming a
February 28, 2018, decision of an Immigration Judge (“IJ”)
denying asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”), In re Esfak Ahmed
Khan, No. A206 652 257 (B.I.A. Jan. 9, 2020), aff’g No. A206
652 257 (Immig. Ct. Buffalo Feb. 28, 2018), and a July 30,
2020, decision of the BIA denying Khan’s subsequent motion to
reopen, No. A206 652 257 (B.I.A. July 30, 2020). We assume
the parties’ familiarity with the underlying facts and
procedural history.
We review findings of fact for substantial evidence and
questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B);
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Yanqin Weng v. Holder, 562 F.3d 510, 513, 516 (2d Cir. 2009).
We dismiss the lead petition because Khan did not raise
any challenge to the BIA’s January 2020 decision in his brief
and failed to exhaust any argument as to asylum, withholding
of removal, and protection under the CAT before the BIA. See
Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (holding
that petitioner’s failure to exhaust arguments before the BIA
deprives this court of jurisdiction to review); see also
Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
Cir. 2005) (finding “single conclusory sentence” constitutes
waiver); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on
appeal.”).
We likewise dismiss the consolidated petition. We
review the denial of a motion to reopen for abuse of
discretion, see Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
F.3d 83, 89–90, 93 (2d Cir. 2001), and we are “mindful that
motions to reopen ‘are disfavored,’” Ali v. Gonzales, 448
F.3d 515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502
U.S. 314, 322–23 (1992)).
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We lack jurisdiction to consider the BIA’s denial of
Khan’s motion to reopen. The agency’s decision whether to
exercise its sua sponte authority under 8 C.F.R. § 1003.2(a)
is “entirely discretionary” and not subject to judicial
review. Ali, 448 F.3d at 518. The limited exception, under
which we will remand if the BIA “misperceived the legal
background and thought, incorrectly, that a reopening would
necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d
Cir. 2009), does not apply here.
The BIA also denied reopening on the basis that,
ultimately, it would not grant Khan adjustment of status as
a matter of discretion. We again lack jurisdiction to review
this determination. The agency relied on INS v. Abudu, 485
U.S. 94 (1988), which held, in the similar context of motions
to reopen, that in certain discretionary matters the BIA may
“leap ahead . . . over the two threshold concerns (prima
facie case and new evidence/reasonable explanation), and
simply determine that even if they were met, the movant would
not be entitled to the discretionary grant of relief.” 485
U.S. at 105; see also Li Yong Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 156 (2d Cir. 2005) (“A motion to remand that
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relies on newly available evidence is held to the substantive
requirements of a motion to reopen.”). “Abudu stands for the
proposition that . . . the BIA may deny a motion to reopen if
it determines that it would ultimately exercise discretion to
deny that relief,” and “[w]here a denial is based on the BIA’s
‘merits-deciding’ analysis of the alien’s entitlement to the
ultimate relief sought, the denial may properly be said to be
a decision ‘under’ the statutory provision providing that
ultimate relief.” Mariuta v. Gonzales, 411 F.3d 361, 364–65
(2d Cir. 2005). Thus, where the BIA denies a motion to remand
to seek adjustment of status because it would ultimately deny
the relief as a matter of discretion, the jurisdictional
limitation in 8 U.S.C. § 1252(a)(2)(B) attaches because the
BIA is making a discretionary determination as to whether an
individual receives adjustment of status under 8 U.S.C.
§ 1255. Mariuta, 411 F.3d at 365–66. We lack jurisdiction
to review such a determination absent a constitutional claim
or question of law. 8 U.S.C. § 1252(a)(2)(D).
We find Khan’s arguments insufficient to invoke our
jurisdiction under 8 U.S.C. § 1252(a)(2)(D) because they
amount to disputes with the BIA’s rationale for its
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discretionary choices and the weight afforded certain
factors, which we lack jurisdiction to review. Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
Khan’s constitutional claim that his due process rights were
violated similarly fails to invoke our jurisdiction because
he has not shown he was deprived of a full and fair
opportunity to present his claim. See Li Hua Lin v. U.S.
Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006) (stating
that due process requires showing applicant was “denied
. . . a full and fair opportunity to present [his] claims.”);
cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156–57 (2d Cir. 2008)
(concluding that noncitizens do not have a “liberty or
property interest” in discretionary relief).
For the foregoing reasons, the petitions for review are
DISMISSED. All pending motions and applications are DENIED
and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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