         10-1906-ag
         Lumaj v. Holder
                                                                                           BIA
                                                                                   A075 836 315
                                                                                   A075 836 316
                                                                                   A075 836 317
                                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 New
 4       York, on the 15th day of June, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                        Circuit Judges.
11       _________________________________________
12
13       LUIGJ LUMAJ, DRITA LUMAJ, XHOZEF LUMAJ,
14                Petitioners,
15
16                         v.                                      10-1906-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONERS:               H. Raymond Fasano, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney General;
26                                      Blair T. O’Connor, Assistant Director;
27                                      Holly M. Smith, Senior Litigation
28                                      Counsel, Office of Immigration
29                                      Litigation, United States Department of
30                                      Justice, 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 Luigj Lumaj, his wife Drita Lumaj, and their

 6   son Xhozef Lumaj, all natives and citizens of Albania, seek

 7   review of an April 12, 2010, decision of the BIA denying their

 8   motion to reopen.     In re Luigj Lumaj, Drita Lumaj, Xhozef

 9   Lumaj, Nos. A075 836 315/316/317 (B.I.A. Apr. 12, 2010).       We

10   assume the parties’ familiarity with the underlying facts and

11   procedural history of the case.

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

13   abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

14   Cir. 2005) (per curiam).     It is undisputed that petitioners’

15   motion to reopen was untimely filed as the agency’s final

16   order of removal was entered in 2003 and the petitioners did

17   not file their motion to reopen until 2010, well beyond the

18   90-day deadline.     See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

19   § 1003.2(c)(2).     Moreover, petitioners do not argue that one

20   of the statutory or regulatory exceptions excused their

21   untimely filing.

22



                                      2
 1       Instead, petitioners argue that the BIA erred in

 2   declining to reopen their removal proceedings sua sponte.         The

 3   BIA’s decision regarding whether to reopen removal proceedings

 4   sua sponte is “entirely discretionary” and beyond the scope of

 5   our review.     See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

 6   2006) (per curiam).       However, “where the Agency may have

 7   declined to exercise its sua sponte authority because it

 8   misperceived the legal background and thought, incorrectly,

 9   that a reopening would necessarily fail, remand to the Agency

10   for reconsideration in view of the correct law is

11   appropriate.”       Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

12   2009).    Here, petitioners argue that the BIA declined to

13   reopen their removal proceedings sua sponte based on its

14   misperception of the agency’s regulations as requiring an

15   alien to demonstrate past persecution in order to establish

16   eligibility for humanitarian asylum.      Petitioners’ argument is

17   without merit.

18       The relevant regulation provides that:

19            An applicant described in paragraph (b)(1)(i) of
20            this section . . . may be granted asylum, in the
21            exercise of the decision-maker’s discretion, if:
22
23                 (A)        The applicant has demonstrated
24                            compelling reasons for being unwilling
25                            or unable to return to the country
26                            arising out of the severity of the
27                            past persecution; or

                                          3
 1              (B)        The applicant has established that
 2                         there is a reasonable possibility that
 3                         he or she may suffer other serious
 4                         harm upon removal to that country.
 5
 6   8 C.F.R. § 1208.13(b)(1)(iii).       Petitioners contend that

 7   because subsection (B) does not refer to past persecution, an

 8   alien can qualify for humanitarian asylum based on a

 9   reasonable possibility of suffering serious harm upon removal

10   without a demonstration of past persecution.       This reading of

11   the regulation ignores the sentence preceding subsections (A)

12   and (B) limiting the applicability of those subsections to

13   applicants “described in paragraph (b)(1)(i),” namely

14   applicants who have suffered past persecution, but who are

15   ineligible for asylum because either there has been a

16   fundamental change in circumstances such that the applicant no

17   longer has a well-founded fear of persecution or the applicant

18   can relocate within his or her country of nationality to avoid

19   future persecution.   8 C.F.R. § 1208.13(b)(1)(i), (iii).

20   Thus, contrary to petitioners’ contention, the BIA did not

21   misperceive the law by stating that an applicant must

22   demonstrate past persecution in order to demonstrate

23   eligibility for humanitarian asylum.       See 8 C.F.R.

24   § 1208.13(b)(1)(iii); see also Kone v. Holder, 596 F.3d 141,

25   146 (2d Cir. 2010) (recognizing that humanitarian asylum “is


                                      4
 1   reserved for persecuted aliens whose persecution was

 2   particularly severe or who may suffer ‘other serious harm’ if

 3   removed”) (quoting 8 C.F.R. § 1208.13(b)(1)(iii))(emphasis

 4   added).   Accordingly, we lack jurisdiction to review the BIA’s

 5   decision declining to reopen petitioners’ proceedings sua

 6   sponte.   See Mahmood, 570 F.3d at 469; Ali, 448 F.3d at 517-

 7   18.

 8         For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition is

11   VACATED, and any pending motion for a stay of removal in this

12   petition is DISMISSED as moot. Any pending request for oral

13   argument in this petition is DENIED in accordance with Federal

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

15   Rule 34(b).

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




                                     5
