     17-3170
     Daikoku v. Barr
                                                                                   BIA
                                                                           A079 713 216

                            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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 15th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            DEBRA ANN LIVINGSTON,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   ALEX R. DAIKOKU, AKA ALEX RUBEN
14   DAIKOKU,
15            Petitioner,
16
17                     v.                                        17-3170
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Michael Musa-Obregon, White
25                                     Plains, NY.
26
27   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
28                                     Attorney General; Shelley R. Goad,
29                                     Assistant Director; Julia J.
30                                     Tyler, 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 Alex R. Daikoku, a native and citizen of

6    Panama, seeks review of a September 6, 2017, decision of the

7    BIA, denying his third motion to reopen.              In re Alex R.

8    Daikoku, No. A079 713 216 (B.I.A. Sept. 6, 2017).            We assume

9    the   parties’   familiarity     with   the   underlying     facts   and

10   procedural history in this case.

11         The applicable standards of review are well established.

12   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

13   2008).    In his motion to reopen, Daikoku asserted that his

14   removal   proceedings   should    be    reopened   because    the    visa

15   petition that his U.S. citizen wife had filed on his behalf

16   had been approved and he was eligible to apply for a waiver

17   of inadmissibility and adjustment of status.

18         The BIA did not abuse its discretion in denying

19   Daikoku’s 2016 motion as untimely and number barred because

20   it was his third motion to reopen filed more than three

21   years after his removal order became final in 2012.            See
                                       2
1    8 U.S.C. § 1229a(c)(7)(A), (C)(i) (limiting noncitizens to

2    one motion to reopen and setting a 90-day deadline for such

3    motions); 8 C.F.R. § 1003.2(c)(2) (same).     His wife’s

4    approved visa petition and his purported eligibility for a

5    waiver of inadmissibility and adjustment of status did not

6    excuse the applicable time and number limitations.         See

7    8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv) (listing exceptions);

8    8 C.F.R. § 1003.2(c)(3) (same); see also Li Yong Zheng v.

9    U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)

10   (providing that changed personal circumstances do not

11   excuse the time and number limitations for motions to

12   reopen); Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA

13   2009) (“[U]ntimely motions to reopen to pursue an

14   application for adjustment of status . . . do not fall

15   within any of the statutory or regulatory exceptions to the

16   time limits for motions to reopen before the Board

17   . . . .”).

18       Because Daikoku did not meet any exception to the time

19   and number limitations, “his motion to reopen could only be

20   considered    upon   exercise   of   the   [BIA’s]   sua     sponte

21   authority.”   Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
                                     3
1    2009).    We lack jurisdiction to review the agency’s “entirely

2    discretionary” decision declining to reopen proceedings sua

3    sponte.    Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

4    Although we may remand if the agency “declined to exercise

5    its sua sponte authority because it misperceived the legal

6    background and thought, incorrectly, that a reopening would

7    necessarily fail,” Mahmood, 570 F.3d at 469, Daikoku has not

8    demonstrated that the BIA misperceived the law.

9        Daikoku       argues   that   the    BIA    could    have   reopened

10   proceedings and stayed his removal while he applied for a

11   waiver    of   inadmissibility    with   the    U.S.    Citizenship    and

12   Immigration Services (“USCIS”).          In Sheng Gao Ni v. BIA, we

13   concluded that the BIA fails to provide an adequate basis for

14   denying a timely motion to reopen by simply observing that,

15   under    agency   regulations,    the    IJ    lacks    jurisdiction   to

16   adjudicate an adjustment application without recognizing that

17   a movant may seek to lift a removal order to have sufficient

18   time to pursue an adjustment application before USCIS.                 520

19   F.3d 125, 129-30 (2d Cir. 2008).          But here, the BIA denied

20   the motion to reopen because it was untimely and number

21   barred.    It did not misperceive its own authority, but simply
                                        4
1    noted that Daikoku could pursue a waiver of inadmissibility

2    with USCIS despite his outstanding removal order and that he

3    could apply for a stay of removal with the Department of

4    Homeland Security.

5        For the foregoing reasons, the petition for review is

6    DENIED.    As we have completed our review, any stay of removal

7    that the Court previously granted in this petition is VACATED,

8    and any pending motion for a stay of removal in this petition

9    is DISMISSED as moot.    Any pending request for oral argument

10   in this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe
15                                 Clerk of Court




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