     15-630
     Cuka v. Lynch
                                                                                       BIA
                                                                               A078 938 184
                                                                               A078 938 185
                          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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   7th day of July, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   KLEMENTINA CUKA, XHEKSON CUKA,
14            Petitioners,
15
16                   v.                                              15-630
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Joshua Bardavid, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Mary
27                                       Jane Candaux, Assistant Director,
28                                       Michael C. Heyse, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, D.C.
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 is

4    DISMISSED.

5         Petitioners Klementina Cuka and her minor son, Xhekson

6    Cuka, natives and citizens of Albania, seek review of a February

7    18, 2015, decision of the BIA denying their motion to reopen

8    the removal proceedings.     In re Klementina Cuka, Xhekson Cuka,

9    Nos. A078 938 184/185 (B.I.A. Feb. 18, 2015).      We assume the

10   parties’ familiarity with the underlying facts and procedural

11   history in this case.

12        We discern no abuse of discretion in the BIA’s denial of

13   reopening.   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

14   2006).   The motion was untimely and number barred and we

15   otherwise lack jurisdiction to review the BIA’s decision not

16   to reopen sua sponte.   Id. at 517-18.

17        An alien seeking to reopen proceedings may file one motion

18   to reopen no later than 90 days after the date on which the final

19   administrative    decision    was    rendered.   See    8   U.S.C.

20   § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).        There is no

21   dispute that the December 2014 motion was untimely because the
                                      2
1    BIA issued a final decision in February 2005, and number barred

2    because it was the second motion to reopen.

3          Nor do any exceptions apply to excuse the time and number

4    limitations.       An application for or eligibility to adjust

5    status is not an exception to the time and number limitations.

6    See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(3); Matter of

7    Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009).

8          Accordingly, the only basis for reopening is the BIA’s sua

9    sponte authority pursuant to 8 C.F.R. § 1003.2(a).                  We lack

10   jurisdiction to review the BIA’s refusal to exercise that

11   “entirely discretionary” authority.                Ali, 448 F.3d at 518.

12   However, “where the Agency may have declined to exercise its

13   sua   sponte     authority     because      it   misperceived    the   legal

14   background and thought, incorrectly, that a reopening would

15   necessarily fail, remand to the Agency for reconsideration in

16   view of the correct law is appropriate.”               Mahmood v. Holder,

17   570 F.3d 466, 469 (2d Cir. 2009).

18         Contrary    to   the    Cukas’       argument,   the   BIA    did   not

19   misapprehend the law.        The BIA concluded that the removal order

20   rendered   the    Cukas      ineligible      for   provisional     unlawful-

21   presence waivers.         The Cukas concede this point and the
                                            3
1    regulations confirm that the BIA is correct.       See 8 C.F.R.

2    § 212.7(e)(4)(vi).   Accordingly, the BIA did not misapprehend

3    the Cukas’ eligibility.    The refusal to reopen and vacate the

4    removal order solely to render them eligible for that relief

5    is a discretionary decision not subject to judicial review.

6    See Ali, 448 F.3d at 518.

7        For the foregoing reasons, the petition for review is

8    DISMISSED.   As we have completed our review, any stay of removal

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

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

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

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

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

14   34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O=Hagan Wolfe, Clerk




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