         12-3324
         Bazuaye v. Holder
                                                                                       BIA
                                                                               A024 359 599
                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of July, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       JEROMI H. BAZUAYE, AKA BRADLEY CAIN,
14       AKA JEROMI BAZUAYE, AKA JOROMI
15       BAZUAYE,
16                     Petitioner,
17
18                           v.                                 12-3324
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                     Respondent.
23       _____________________________________
24
25       FOR PETITIONER:               Thomas K. Ragland, Benach Ragland
26                                     LLP, Washington, D.C.
27
28       OR RESPONDENT:                Stuart F. Delery, Acting Assistant
29                                     Attorney General; Keith I. McManus,
30                                     Senior Litigation Counsel; Matt A.
31                                     Crapo, 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

 8   is DISMISSED for lack of jurisdiction.

 9       Petitioner Jeromi H. Bazuaye, a native and citizen of

10   Nigeria, seeks review of an August 17, 2012, order of the

11   BIA denying his motion to reconsider and reopen.   In re

12   Jeromi H. Bazuaye, No. A024 359 599 (B.I.A. Aug. 17, 2012).

13   We assume the parties’ familiarity with the underlying facts

14   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 Jin Ming Liu v.

17   Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Kaur v. BIA, 413

18   F.3d 232, 233 (2d Cir. 2005) (per curiam).   “An abuse of

19   discretion may be found . . . where the [BIA’s] decision

20   provides no rational explanation, inexplicably departs from

21   established policies, is devoid of any reasoning, or

22   contains only summary or conclusory statements; that is to

23   say, where the Board has acted in an arbitrary or capricious

24   manner.”   Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

25   83, 93 (2d Cir. 2001) (internal citations omitted).

                                   2
 1        Although we lack jurisdiction to review a final order

 2   of removal against an alien, such as Bazuaye, who is

 3   removable for having been convicted of a an aggravated

 4   felony, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to

 5   review constitutional claims and questions of law, 8 U.S.C.

 6   § 1252(a)(2)(D), which are subject to de novo review, Pierre

 7   v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).    “[W]e lack

 8   jurisdiction to review any legal argument that is so

 9   insubstantial and frivolous as to be inadequate to invoke

10   federal-question jurisdiction.”   Barco-Sandoval v. Gonzales,

11   516 F.3d 35, 40 (2d Cir. 2008) (citation omitted).

12   I.   Motion to Reconsider

13        Bazuaye fails to raise a colorable constitutional claim

14   or question of law with respect to the denial of his motion

15   to reconsider as untimely.   See Barco-Sandoval, 516 F.3d at

16   40; see also Ke Zhen Zhao, 265 F.3d at 93.     Indeed,

17   Bazuaye’s January 2012 motion was filed more than a year

18   after the 30-day period expired in September 2010.       See

19   8 C.F.R. § 1003.2(b)(2) (“A motion to reconsider a decision

20   must be filed with the Board within 30 days after the

21   mailing of the Board decision.”); accord 8 U.S.C.

22   § 1229a(c)(6)(B).   Although the BIA “may at any time . . .


                                   3
 1   reconsider on its own motion any case in which it has

 2   rendered a decision,” 8 C.F.R. § 1003.2(a), Bazuaye fails to

 3   identify any authority in support of his contention that the

 4   filing deadline on motions to reconsider may be equitably

 5   tolled.     Moreover, while we have recognized that the

 6   statutory time limitation on motions to reopen may be

 7   equitably tolled on the basis of ineffective assistance of

 8   counsel or “where fraud or concealment of the existence of a

 9   claim prevents an alien from timely filing [his] motion,”

10   Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008)

11   (citation omitted), Bazuaye’s equitable tolling argument was

12   premised on the fact that he filed his motion after learning

13   about the BIA’s decision in Matter of     J.R. Velasquez, 25 I.

14   & N. Dec. 680 (B.I.A. 2012) (establishing guidelines for the

15   admission of evidence to prove criminal convictions in

16   immigration proceedings).     Accordingly, Bazuaye’s contention

17   that the BIA erred in failing to equitably toll the time

18   limitation on his motion to reconsider is too “insubstantial

19   and frivolous . . . to invoke federal-question

20   jurisdiction.”     Barco-Sandoval, 516 F.3d at 40 (citations

21   omitted).

22



                                     4
 1   II. Motion to Reopen

 2       Bazuaye also fails to raise a colorable constitutional

 3   claim or question of law with respect to the denial of his

 4   untimely motion to reopen.   See id.    An alien seeking to

 5   reopen proceedings must file a motion to reopen no later

 6   than 90 days after the date on which the final

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

 8   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).     As the BIA

 9   noted, Bazuaye’s January 2012 motion was untimely because it

10   was filed more than year after his order of removal became

11   final in August 2010.   See 8 U.S.C. § 1101(a)(47)(B)(i)

12   (defining final order or removal).     Although Bazuaye sought

13   reopening to apply for adjustment of status on the basis of

14   an approved visa petition, “untimely motions to reopen to

15   pursue an application for adjustment of status . . . do not

16   fall within any of the statutory or regulatory exceptions to

17   the time limits for motions to reopen.”     Matter of Yauri, 25

18   I. & N. Dec. 103, 105 (B.I.A. 2009) (citing 8 U.S.C.

19   § 1229a(c)(7)(C)(ii)-(iv) and 8 C.F.R. § 1003.2(c)(3)).

20   Bazuaye’s assertion that the BIA did not specifically

21   address his request for reopening to apply for adjustment of

22   status is flatly contradicted by the record     and is too

23   “insubstantial and frivolous . . . to invoke
                                   5
 1   federal-question jurisdiction.”     Barco-Sandoval, 516 F.3d at

 2   40 (citations omitted).     As a result, Bazuaye has failed to

 3   raise a reviewable constitutional claim or question of law

 4   in connection with the BIA’s denial of his untimely motion

 5   to reopen.

 6       For the foregoing reasons, the petition for review is

 7   DISMISSED.     As we have completed our review, the pending

 8   motion for a stay of removal in this petition is DISMISSED

 9   as moot.     The pending request for oral argument in this

10   petition is DENIED in accordance with Federal Rule of

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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