         03-40494-ag
         Ghani v. Holder
                                                                                        BIA
                                                                                  IJ, Nelson
                                                                               A070 651 195
                            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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                DENNY CHIN,
11                    Circuit Judges.
12       _________________________________________
13
14       ATAUL GHANI,
15                Petitioner,
16
17                         v.                                     03-40494-ag
18                                                                NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, *
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:               Salim Sheikh, New York, New York.


                  *
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General John
         Ashcroft as respondent in this case.
1    FOR RESPONDENT:           Preet Bharara, United States
2                              Attorney for the Southern District
3                              of New York; Sue Chen, Special
4                              Assistant United States Attorney;
5                              Ross E. Morrison, Assistant United
6                              States Attorney, Of Counsel, New
7                              York, New York.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED, that the petition for review

12   is DENIED.

13       Petitioner Ataul Ghani, a native and citizen of

14   Bangladesh, seeks review of an August 26, 2003, order of the

15   BIA, affirming the June 24, 2002, decision of Immigration

16   Judge (“IJ”) Barbara A. Nelson, which denied his motion to

17   reopen.     In re Ataul Ghani, No. A070 651 195 (B.I.A. Aug.

18   26, 2003), aff’g No. A070 651 195 (Immig. Ct. N.Y. City June

19   24, 2002).     We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21        When a movant is ordered deported in absentia, a

22   motion to reopen is governed by different rules depending on

23   whether the movant seeks to rescind the order or present new

24   evidence.     See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d

25   Cir. 2006); see also In re M-S-, 22 I. & N. Dec. 349, 353-55

26   (B.I.A. 1998) (en banc).     Ghani has filed a single motion


                                     2
1    that seeks both rescission of an in absentia deportation

2    order and reopening of deportation proceedings based on new

3    evidence. We treat such a motion as comprising distinct

4    motions to rescind and to reopen.    See Alrefae v. Chertoff,

5    471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze v.

6    Gonzales, 462 F.3d 150, 152 n.1 (2d Cir. 2006).    Under the

7    circumstances of this case, we consider both the IJ’s and

8    the BIA’s opinions “for the sake of completeness.”       Zaman v.

9    Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).    We review the

10   agency’s denial of a motion to rescind an in absentia

11   deportation order under the same abuse of discretion

12   standard applicable to motions to reopen.    See Alrefae, 471

13   F.3d at 357; see also Ali v. Gonzales, 448 F.3d 515, 517 (2d

14   Cir. 2006).   However, when the agency considers relevant

15   evidence of country conditions in evaluating a motion to

16   reopen, we review the agency’s factual findings under the

17   substantial evidence standard.    See Jian Hui Shao v.

18   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

19   I.   Motion to Rescind

20        The agency did not abuse its discretion in denying as

21   untimely Ghani’s motion to rescind the IJ’s in absentia

22   order.   When a movant asserts that failure to appear at the


                                   3
1    deportation hearing was caused by exceptional circumstances,

2    as Ghani did in his motion, the motion seeking rescission

3    must be filed within 180 days of that order.    See 8 C.F.R. §

4    1003.23(b)(4)(iii)(A)(1).   Ghani filed his motion to rescind

5    over four years after the IJ entered an in absentia

6    deportation order.   The agency did not abuse its discretion

7    in denying his motion to rescind as untimely.    See id.

8    II.   Motion to Reopen

9          The agency denied Ghani’s motion to reopen as untimely

10   and number-barred.   An alien is limited to a single motion

11   to reopen filed no later than 90 days after the date on

12   which the final administrative decision was rendered.      See

13   8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1).   There is no time

14   or numerical limit for filing a motion to reopen if it is

15   “based on changed circumstances arising in the country of

16   nationality or in the country to which deportation has been

17   ordered, if such evidence is material and was not available

18   and could not have been discovered or presented at the

19   previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii) Ghani’s

20   motion to reopen alleges a fear of persecution very similar

21   to that made in his original asylum application.    Although

22   the political leaders in Bangladesh had recently changed


                                   4
1    from the Awami League to the Bangladesh Nationalist Party,

2    Ghani claimed a continued fear of both parties.     Thus,

3    substantial evidence supports the agency’s finding that

4    Ghani failed to establish material changed country

5    conditions in Bangladesh excusing the untimely and number-

6    barred filing of his motion to reopen.   See Jian Hui Shao,

7    546 F.3d at 169.

8        Ghani also argues that the agency erred by declining to

9    reopen his case to allow him to apply for adjustment of

10   status pursuant to his wife’s labor certification.     However,

11   eligibility to adjust status is not an exception to the time

12   and numerical limitations for filing a motion to reopen.

13   The BIA therefore did not abuse its discretion in denying

14   Ghani’s motion to reopen to apply for adjustment of status

15   as untimely.   See 8 C.F.R. § 1003.23(b)(1), (4).

16   Furthermore, to the extent Ghani challenges the BIA’s

17   refusal to reopen his case sua sponte,   we lack jurisdiction

18   to review a decision of the BIA not to reopen a case sua

19   sponte under 8 C.F.R. § 1003.2(a), because such a decision

20   is “entirely discretionary.”   Ali, 448 F.3d at 518.

21       For the foregoing reasons, the petition for review is

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


                                    5
1    removal that the Court previously granted in this petition

2    is VACATED, and any pending motion for a stay of removal in

3    this petition is DISMISSED as moot.    Any pending request for

4    oral argument in this petition is DENIED in accordance with

5    Federal Rule of Appellate Procedure 34(a)(2), and Second

6    Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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