Dacaj v. Holder

10-981-ag
Dacaj v. Holder
BIA
A078 716 980
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 4 th day of April, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
Circuit Judges.
______________________________________
HALIL DACAJ,
Petitioner,
10-981-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,
New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Genevieve Holm, Attorney,
U.S. Department of Justice, Office
of Immigration Litigation,
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 DISMISSED.
The Petitioner, Halil Dacaj, a native of Yugoslavia and
citizen of Serbia-Montenegro, seeks review of a February 22,
2010, decision of the BIA denying his motion to reopen his
removal proceedings. In re Halil Dacaj, No. A078 716 980
(B.I.A. Feb. 22, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
Although we generally review the BIA’s denial of a
motion to reopen for abuse of discretion, the BIA’s
determination as to whether it will exercise its sua sponte
authority to reopen is entirely discretionary and thus
beyond the scope of this Court’s jurisdiction. See Ali v.
Gonzales, 448 F.3d 515, 517-18 (2d Cir. 2006)(per curiam).
However, in instances “where the Agency may have declined to
exercise its sua sponte authority because it misperceived
the legal background and thought, incorrectly, that a
reopening would necessarily fail, remand to the Agency for
reconsideration in view of the correct law is appropriate.”
2
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).
Dacaj asserts that our decisions in Balachova v.
Mukasey, 547 F.3d 374 (2d Cir. 2008), and Weng v. Holder,
562 F.3d 510 (2d Cir. 2009), altered the standard for what
conduct would be considered “assistance in persecution” such
that the persecutor bar would apply. Dacaj argues that
remand is therefore necessary because the BIA declined to
sua sponte reopen his proceedings only because it
erroneously concluded that Balachova and Weng did not
represent a change in the law, and thus would not alter the
result in his case. However, Balachova merely cited our
prior decisions in Chao Qun Jiang v. BCIS, 520 F.3d 132 (2d
Cir. 2008), and Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93(2d Cir. 2007), as well as the applicable statutory
provisions, see 8 U.S.C. §§ 1101(a)(42), 1231(b)(3),
in discussing the factors previously employed by this Court
in determining whether the persecutor bar applies. See
Balachova, 547 F.3d at 384-85; see also Weng, 562 F.3d at514 (citing Balachova). Accordingly, although Dacaj argues
that the Balachova and Weng decisions changed the definition
of “assistance in persecution,” the BIA correctly noted that
rather than change the law, those decisions merely applied
the existing standards to the specific facts in each case.
3
See Balachova, 547 F.3d at 386-87 (remanding to the BIA to
consider whether a petitioner’s inaction may be considered
“assistance in persecution”); see also Weng, 562 F.3d at 515(concluding that taken “as a whole,” a petitioner’s single
instance of passive assistance in persecution did not
subject her to the persecutor bar when she had also used her
position to help an individual escape). Because, as the BIA
correctly concluded, these decisions simply clarified and
applied existing law, we lack jurisdiction over the BIA’s
decision and remand is inappropriate.
For the foregoing reasons, the petition for review is
DISMISSED. As we have completed our review, the pending
motion for a stay of removal in this petition is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4