     16-1343
     Woozencroft v. Sessions
                                                                                       BIA
                                                                               A205 497 485

                               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   6th day of December, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   DAMIAN RUDOLPH WOOZENCROFT, AKA
14   RICHARD BLACKWELL,
15            Petitioner,
16
17                     v.                                            16-1343
18                                                                   NAC
19   JEFFERSON B. SESSIONS III, UNITED
20   STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                      Mikhail Izrailev (and Parisa
25                                        Karaahmet, on the brief), Fragomen,
26                                        Del Rey, Bernsen & Loewy, LLP, New
27                                        York, N.Y.
28
29   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
30                                        Attorney General; Claire L. Workman,
31                                        Senior Litigation Counsel; Jane T.
32                                        Schaffner, Trial Attorney, Office of
 1                               Immigration Litigation, United
 2                               States Department of Justice,
 3                               Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 8   DENIED.

 9       Petitioner   Damian   Rudolph      Woozencroft,   a   native   and

10   citizen of Jamaica, seeks review of a March 18, 2016, decision

11   of the BIA denying his motions to reconsider and reopen.            In

12   re Damian Rudolph Woozencroft, No. A205 497 485 (B.I.A. Mar.

13   18, 2016).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       We review the BIA’s denial of motions to reconsider and

16   reopen for abuse of discretion.       See Zhao Quan Chen v. Gonzales,

17   492 F.3d 153, 154 (2d Cir. 2007).      The BIA abuses its discretion

18   if its “decision provides no rational explanation, inexplicably

19   departs from established policies, is devoid of any reasoning,

20   or contains only summary or conclusory statements.”          Kaur v.

21   BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (quoting Ke Khen Zhao

22   v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2005)).

23       Motions to reconsider must “specify[] the errors of fact

24   or law in the prior Board decision.”       8 C.F.R. § 1003.2(b)(1).


                                       2
1    “A motion to reopen proceedings shall not be granted unless it

2    appears to the B[IA] that evidence sought to be offered is

3    material and was not available and could not have been

4    discovered    or   presented     at       the    former      hearing.”      Id.

5    § 1003.2(c)(1).     The BIA “ordinarily will not grant [a motion

6    to reopen] unless the movant has met the ‘heavy burden’ of

7    demonstrating a likelihood that the new evidence presented

8    would alter the result in the case.”             Li Yong Cao v. U.S. Dep’t

9    of Justice, 421 F.3d 149, 156 (2d Cir. 2005) (quoting Matter

10   of Coelho, 20 I. & N. Dec. 464, 471-72 (B.I.A. 1992)).

11        First, the BIA did not abuse its discretion in denying

12   Woozencroft’s motion to reconsider its denial of his third

13   briefing extension request.           See Kaur, 413 F.3d at 233-34.

14   Although Woozencroft reiterated in his motion that he was

15   awaiting surgery and could not file a brief because of his poor

16   vision, he did not “specify[] [any] errors of fact or law in

17   the prior Board decision” denying his briefing extension

18   request as required.          8 C.F.R. § 1003.2(b)(1).             Therefore,

19   the BIA did not abuse its discretion in denying reconsideration.

20   See id.; Kaur, 413 F.3d at 233-34.              Further, as the Government

21   points out, we previously concluded that “[t]he [BIA’s] denial

22   of   a   [third]   briefing    extension         was   not    a   due   process


                                           3
1    violation.”     2d Cir. 16-469, doc. 46 (Order).       We adhere to

2    that determination as the law of the case.        Johnson v. Holder,

3    564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case doctrine

4    commands that ‘when a court has ruled on an issue, that decision

5    should generally be adhered to by that court in subsequent

6    stages in the same case’ unless ‘cogent and compelling reasons

7    militate otherwise.’” (quoting United States v. Quintieri, 306

8    F.3d 1217, 1225 (2d Cir. 2002))).

9        Second, the BIA did not abuse its discretion in denying

10   Woozencroft’s motion to reopen.        Woozencroft reiterated in his

11   motion his desire to submit a brief and additional evidence;

12   however, in neither his motion to reopen nor his brief in this

13   Court does Woozencroft identify the additional evidence he

14   sought to submit.     The BIA did not abuse its discretion in

15   denying reopening because Woozencroft did not support his

16   motion   with   any   new   evidence     and   therefore   failed   to

17   “demonstrat[e] a likelihood that the new evidence presented

18   would alter the result in the case.”       See Li Yong Cao, 421 F.3d

19   at 156; 8 C.F.R. § 1003.2.

20       Lastly, to the extent that the BIA construed Woozencroft’s

21   motions as requests to reconsider or reopen sua sponte, we lack

22   jurisdiction to review the BIA’s “entirely discretionary”


                                      4
1    decision to decline to exercise its sua sponte authority.   See

2    Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); see also 8

3    C.F.R. § 1003.2(a).    Although there is an exception allowing

4    remand “where the Agency may have declined to exercise its sua

5    sponte authority because it misperceived the legal background

6    and thought, incorrectly, that a reopening would necessarily

7    fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), this

8    exception does not apply here, and Woozencroft does not contend

9    that it does.

10       For the foregoing reasons, the petition for review is

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

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

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

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

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

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

17   34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk




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