Haxhija v. Holder

10-925-ag
Haxhija v. Holder
BIA
A073 583 096
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 15th day of May, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
SHAQE HAXHIJA
Petitioner,
v. 10-925-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Joshua E. Bardavid, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Keith I. McManus, Senior
Litigation Counsel; Matt A. Crapo,
Trial Attorney, 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 DISMISSED.
Petitioner Shaqe Haxhija, a native of the former
Yugoslavia and citizen of Kosovo, seeks review of a February
19, 2010, order of the BIA denying his motion to reopen. In
re Shaqe Haxhija, No. A073 583 096 (B.I.A. Feb. 19, 2010).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We lack jurisdiction to consider Haxhija’s challenge to
the BIA’s denial of reopening. Haxhija argues only that the
BIA abused its discretion in declining to exercise its sua
sponte authority to reopen his proceedings. The BIA’s
determination as to whether it will exercise its sua sponte
authority is “entirely discretionary and therefore beyond
our review.” Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
2006). Although remand is appropriate “where the Agency may
have declined to exercise its sua sponte authority because
it misperceived the legal background and thought,
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incorrectly, that a reopening would necessarily fail,”
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there
is no indication here that the BIA misperceived the law in
declining to reopen proceedings sua sponte. There is no
suggestion that the BIA denied Haxhija’s motion based on his
failure to demonstrate prima facie eligibility for
adjustment of status; rather, the BIA determined that
Haxhija had not shown an “exceptional situation” that would
warrant reopening his proceedings sua sponte and therefore
simply declined to exercise its authority to do so.
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
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