     18-65
     Krasniqi v. Barr
                                                                                  BIA
                                                                          A078 719 302
                             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 28th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RAYMOND J. LOHIER, JR.,
10            RICHARD J. SULLIVAN,
11                 Circuit Judges.
12   _____________________________________
13
14   AGRON KRASNIQI,
15            Petitioner,
16
17                      v.                                       18-65
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Charles Christophe, New York, NY.
25
26   FOR RESPONDENT:                    Joseph H. Hunt, Assistant
27                                      Attorney General; Mary Jane
28                                      Candaux, Assistant Director; Remi
29                                      da Rocha-Afodu, Trial Attorney,
30                                      Office of Immigration Litigation,
31                                      United States Department of
32                                      Justice, 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 DISMISSED.

5        We review the BIA’s denial of a motion to reopen for

6    abuse of discretion.       Ali v. Gonzales, 448 F.3d 515, 517 (2d

7    Cir. 2006).     An alien may file one motion to reopen no later

8    than 90 days after the final administrative decision is

9    rendered.     See 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i); 8 C.F.R.

10   § 1003.2(c)(2).       It is undisputed that Krasniqi’s August 2017

11   motion was time and number barred because it was his third

12   motion to reopen, filed more than 14 years after the BIA’s

13   May 2003 decision dismissing his appeal of his removal order.

14   While   there   are    limited   exceptions   to   the   90-day   time

15   limitation, Krasniqi does not assert that any of them apply.

16   See 8 U.S.C. § 1229a(c)(7)(C)(ii); Rashid v. Mukasey, 533

17   F.3d 127, 130 (2d Cir. 2008); 8 C.F.R. § 1003.2(c)(3).            His

18   eligibility to adjust status based on his marriage does not

19   implicate any exception.         See Matter of Yauri, 25 I. & N.

20   Dec. 103, 105 (BIA 2009).

21       Even when a motion to reopen is untimely, the BIA has

22   regulatory authority to reopen sua sponte.               See 8 C.F.R.


                                        2
1    § 1003.2(a).   The agency invokes its sua sponte authority

2    only in “exceptional situations,” not as a “general cure for

3    filing defects or to otherwise circumvent the regulations,

4    where enforcing them may result in hardship.”      In re J-J-,

5    21 I. & N. Dec. 976, 984 (BIA 1997).     We lack jurisdiction

6    to review a decision declining to reopen sua sponte because

7    it is “entirely discretionary.”   Ali, 448 F.3d at 518.    There

8    is only one exception, “where the [BIA] may have declined to

9    exercise its sua sponte authority because it misperceived the

10   legal background and thought, incorrectly, that a reopening

11   would   necessarily   fail,   remand    to   the   [BIA]     for

12   reconsideration in view of the correct law is appropriate.”

13   Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).      We find

14   no basis for remand here because the BIA did not conclude

15   that reopening would necessarily fail or address Krasniqi’s

16   eligibility for relief.   The BIA determined only that there

17   was no exceptional situation that warranted reopening.




                                   3
1   Accordingly, we lack jurisdiction to review further the BIA’s

2   denial of reopening.   See Ali, 448 F.3d at 518.

3       For the foregoing reasons, the petition for review is

4   DISMISSED.   All pending motions are DENIED and stays VACATED.

5                                FOR THE COURT:
6                                Catherine O’Hagan Wolfe,
7                                Clerk of Court




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