Lulbadda Waduge Don v. Barr ( 2020 )

18-240
Lulbadda Waduge Don v. Barr
BIA
A076 500 755
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
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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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of December, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 SHIRAN DULIP KARUNADASA LULBADDA
14 WADUGE DON, AKA SHIRAN DULIP
15 KARUNADASA,
16 Petitioner,
17
18 v. 18-240
19 NAC
20 WILLIAM P. BARR, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
28 General; Jeffery R. Leist, Senior
29 Litigation Counsel; Alexander J.
30 Lutz, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, DC.
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 DENIED.
5 Petitioner Shiran Dulip Karunadasa Lulbadda Waduge Don,
6 a native and citizen of Sri Lanka, seeks review of a January
7 29, 2018, decision of the BIA denying his motion to reopen
8 his removal proceedings. In re Lulbadda Waduge Don, No. A076
9 500 755 (B.I.A. Jan. 29, 2018). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 We review the agency’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 518 (2d
14 Cir. 2006). Lulbadda Waduge Don moved to reopen in order to
15 apply to adjust status based on an approved visa petition
16 filed on his behalf by his U.S. citizen wife. The agency did
17 not abuse its discretion in denying the November 2017 motion
18 because it was untimely filed more than two years after the
19 removal order became final and did not fall within any of the
20 statutory or regulatory exceptions to the time limit for a
21 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day
22 deadline for motions to reopen); Matter of Yauri, 25 I. & N.
23 Dec. 103, 105 (BIA 2009). Lulbadda Waduge Don argues that
2
1 his approved visa petition is new, material, and previously
2 unavailable evidence that warrants reopening, but he
3 overlooks that the evidentiary standard for a timely motion
4 to reopen does not implicate any exception to the 90-day
5 deadline. See Matter of Coelho, 20 I. & N. Dec. 464 (BIA
6 1992); compare 8 C.F.R. § 1003.2(c)(2) (timeliness
7 requirement) with 8 C.F.R. § 1003.2(c)(1) (evidentiary
8 requirement). We otherwise lack jurisdiction to review the
9 BIA’s “entirely discretionary” decision not to exercise its
10 sua sponte authority to reopen his proceedings. Ali, 448
11 F.3d at 518.
12 Although we may remand if the agency “declined to
13 exercise its sua sponte authority because it misperceived the
14 legal background and thought, incorrectly, that a reopening
15 would necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469
16 (2d Cir. 2009), Lulbadda Waduge Don has not demonstrated that
17 the BIA misperceived the law. The BIA did not find him
18 ineligible for the relief sought; it simply determined that
19 his situation was not so exceptional as to warrant reopening.
20 This is precisely the determination we lack jurisdiction to
21 review. See Ali, 448 F.3d at 518.
22
23
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review the motion for a
3 stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
4