                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2008

Vaso v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4164




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BLD-67                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4164
                                     ___________

                                    BLEDAR VASO

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                     On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                             (Agency No. A76-578-492)
                   Immigration Judge: Honorable Donald V. Ferlise
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 29, 2007

               Before: McKEE, RENDELL and SMITH, Circuit Judges

                          (Opinion filed : February 12, 2008 )
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Petitioner, Bledar Vaso, has filed a petition for review from the order of the Board

of Immigration Appeals (“BIA”) denying his motion to reopen. The government has filed



                                            1
a motion for summary action. For the reasons that follow, we will summarily deny the

petition for review in part and dismiss in part. See Third Circuit LAR 27.4 and I.O.P.

10.6.

        Only the BIA’s October 22, 2007 decision, denying Petitioner’s motion to reopen,

is properly before this Court. See Nocon v. I.N.S., 789 F.2d 1028, 1032-33 (3d Cir.

1986) (explaining that final deportation orders and orders denying motions to reconsider

are independently reviewable and a timely petition for review must be filed with respect

to the specific order sought to be reviewed). We review the BIA’s denial of a motion to

reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).

Under the abuse of discretion standard, the BIA’s decision may be reversed only if it is

“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.

2002). We will summarily deny a petition for review if the petition presents no

substantial question. See I.O.P. 10.6.

        We conclude that the BIA’s decision denying Petitioner’s motion to reopen as

untimely is not arbitrary, irrational, or contrary to law. Petitioner concedes that his

motion to reopen is time barred. He argues, however, that the BIA erred by failing to sua

sponte reopen his proceedings in light of this Court’s decision in Zheng v. Gonzales, 422

F.3d 98 (3d Cir. 2005). We have specifically held that the BIA’s failure to sua sponte

reopen a decision is not reviewable. Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.




                                              2
2003).1

       For the foregoing reasons, we will grant the government’s motion for summary

action and summarily deny Petitioner’s petition for review to the extent that Petitioner

challenges the BIA’s decision denying Petitioner’s motion to reopen as untimely. To the

extent that Petitioner challenges the BIA’s failure to sua sponte reopen his proceedings,

we will dismiss his petition for review for lack of jurisdiction. See Calle-Vujiles, 320

F.3d 472.




       1
          Petitioner’s case is also distinguishable from Cruz v. Attorney General of the
United States, 452 F.3d 240, 250 (3d Cir. 2006), where we questioned whether the BIA
could, without explanation or reason, depart from a settled practice and refuse to reopen
proceedings. Here, the BIA has not adopted, either explicitly or through practice, a policy
of reopening cases that challenge adjustment of status decisions pre-Zheng.

                                             3
