McPherson v. Wilkinson ( 2021 )

18-696
McPherson v. Wilkinson
BIA
A087 264 608
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of February, two thousand twenty-one.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD J. SULLIVAN,
9 STEVEN J. MENASHI,
10 Circuit Judges.
11 _____________________________________
12
13 DELROY HORACE MCPHERSON,
14 Petitioner,
15
16 v. 18-696
17 NAC
18 ROBERT M. WILKINSON, ACTING
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent. 1
21 _____________________________________
22
23 FOR PETITIONER: Delroy Horace McPherson, pro se,
24 Bloomfield, CT.
25
26 FOR RESPONDENT: [VACANT], Assistant Attorney
1 Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson is
automatically substituted for former Attorney General William P. Barr.
1 General; Song E. Park, Acting
2 Assistant Director; Aaron D.
3 Nelson, Trial Attorney, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Delroy Horace McPherson, a native and citizen
12 of Jamaica, seeks review of a February 23, 2018, decision of
13 the BIA denying his fifth motion to reopen his removal
14 proceedings. In re Delroy Horace McPherson, No. A 087 264
15 608 (B.I.A. Feb. 23, 2018). We assume the parties’
16 familiarity with the underlying facts and procedural history.
17 We have reviewed the BIA’s denial of the motion to reopen
18 for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,
19 517 (2d Cir. 2006). We find no abuse of discretion because
20 an alien seeking to reopen proceedings may file only one
21 motion to reopen no later than 90 days after the final
22 administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
23 C.F.R. § 1003.2(c)(2). McPherson’s 2017 motion was untimely
24 and number barred because his removal order was final in 2014
25 and this was his fifth motion to reopen. McPherson’s request
26 to reopen to apply for adjustment of status does not implicate
2
1 any exception to the time and number limitations. See Matter
2 of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009); see also
3 8 U.S.C. § 1229a(c)(7)(C)(ii) (asylum exception); 8 C.F.R.
4 § 1003.2(c)(3) (listing exceptions). McPherson’s motion did
5 not identify grounds for equitable tolling based on
6 ineffective assistance of counsel. Cf. Rashid v. Mukasey,
7 533 F.3d 127, 130–31 (2d Cir. 2008) (recognizing equitable
8 exception to time and number limits based on ineffective
9 assistance, but requiring showing that counsel’s actions were
10 unreasonable and caused prejudice and that movant acted
11 diligently in raising claim).
12 Absent an exception to the time and number limitations,
13 the only basis for reopening was an exercise of the BIA’s
14 authority to reopen sua sponte. That authority is “entirely
15 discretionary,” and we lack jurisdiction to review it absent
16 a misperception of the law, which did not occur here. Ali,
17 448 F.3d at 518; Mahmood v. Holder, 570 F.3d 466, 471 (2d
18 Cir. 2009).
19 For the foregoing reasons, the petition for review is
20 DENIED. All pending motions and applications are DENIED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe,
23 Clerk of Court
3