Sarkar v. Holder , 397 F. App'x 687 ( 2010 )

09-2523-ag
Sarkar v. Holder
BIA
A073 534 922
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 21st day of October, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
________________________________________
RAJA SARKAR,
Petitioner,
v. 09-2523-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Raja Sarkar, pro se
FOR RESPONDENT: Tony West, Assistant Attorney
General; William C. Peachey,
Assistant Director; Daniel E.
Goldman, Senior Litigation Counsel,
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 Raja Sarkar, a native and citizen of
Bangladesh, seeks review of the June 11, 2009, order of the
BIA denying his motion to reopen. In re Raja Sarkar, No. A073
534 922 (B.I.A. June 11, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
As a preliminary matter, we note that because our review
is limited to the BIA’s June 2009 decision, we do not reach
Sarkar’s challenges to the agency’s earlier decisions. See Ke
Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d
Cir. 2001); see also Stone v. INS, 514 U.S. 386, 405-06
(1995).
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). To the extent the BIA evaluated country
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conditions evidence, we review its decision for substantial
evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
The BIA did not abuse its discretion in denying Sarkar’s
motion to reopen as untimely and number-barred. In general,
a motion to reopen must be filed no later than 90 days after
the date on which the final administrative decision was
rendered in the proceedings sought to be reopened, and only
one such motion may be filed. See 8 C.F.R. § 1003.2(c)(2).
There is no dispute that Sarkar’s November 2008 motion to
reopen was filed more than six years after the BIA affirmed
the IJ’s denial of his asylum application. Because that
motion was Sarkar’s third, the motion was both untimely and
numerically barred. See id. In these circumstances, the
BIA’s denial of the motion to reopen was not an abuse of
discretion. Although no time and number limitations apply
where the petitioner demonstrates “changed circumstances
arising in the country of nationality or in the country to
which deportation has been ordered, if such evidence is
material and was not available and could not have been
discovered or presented at [his] previous hearing,” id.§ 1003.2(c)(3)(ii), the BIA reasonably concluded that Sarkar
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failed to demonstrate that he satisfied the requirements of
this exception.
While Sarkar argues that the BIA erred in ignoring
evidence of changed country conditions submitted with his
motion to reopen, the evidence he cites was submitted to the
BIA with his November 2006 motion to reopen. That motion was
denied by the BIA in a June 2007 decision that we subsequently
upheld. See Sarkar v. Mukasey, 300 F. App’x 98, 99 (2d Cir.
2008) (unpublished). Because we have previously held that, in
light of the evidence here at issue, the agency did not err in
declining to reopen Sarkar’s proceedings, we reach the same
conclusion under the doctrine of the law of the case given the
absence of any “cogent and compelling reason[]” not to do so.
United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)
(internal quotation marks omitted); accord Johnson v. Holder,
564 F.3d 95, 99 (2d Cir. 2009).
Even construing Sarker’s pro se petition for review
broadly, see Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d
Cir. 2002), to include the argument that the BIA ignored
evidence that he submitted for the first time with his
November 2008 motion, the argument is without merit. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d
4
Cir. 2006); Wei Guang Wang v. BIA, 437 F.3d 270, 274-75 (2d
Cir. 2006). For the foregoing reasons, the BIA reasonably
found that Sarker failed to demonstrate a material change in
country conditions, and did not abuse its discretion in
denying his motion to reopen as untimely. See Kaur v. BIA,
413 F.3d 232, 233-34 (2d Cir. 2005); 8 C.F.R.
§ 1003.2(c)(3)(ii).
Accordingly, 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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