         11-2797
         Baldi v. Holder
                                                                                         BIA
                                                                                 A012 099 608
                            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 1st day of August, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                         Circuit Judges.
11       _____________________________________
12       BENIAMINO BALDI,
13                Petitioner,
14
15                         v.                                      11-2797
16                                                                 NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL,
19                Respondent.
20
21       _____________________________________
22
23       FOR PETITIONER:                Beniamino Baldi, Pro Se, Gadsden,
24                                      Alabama.*


                  *
               Following the withdrawal of Baldi’s previous counsel,
         Millicent Y. Clarke, replacement counsel did not file a
         notice of appearance within the designated 30-day period.
         Accordingly, Baldi proceeds pro se.
 1
 2   FOR RESPONDENT:        Tony West, Assistant Attorney
 3                          General; Emily Anne Radford,
 4                          Assistant Director; Sarah L. Vuong,
 5                          Trial Attorney, Office of
 6                          Immigration Litigation, United
 7                          States Department of Justice,
 8                          Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner Beniamino Baldi, a native and citizen of

15   Italy, seeks review of the June 7, 2011, order of the BIA

16   denying his motion to reopen.       In re Beniamino Baldi, No.

17   A012 099 608 (B.I.A. June 7, 2011).      We assume the parties’

18   familiarity with the underlying facts and procedural history

19   of the case.

20       While we generally lack jurisdiction to review a final

21   order of removal issued against an alien, such as Baldi, who

22   was found removable by reason of having committed an

23   aggravated felony, we retain jurisdiction to review

24   colorable constitutional claims or questions of law.       See

25   8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d 113,

26   115 (2d Cir. 2004) (recognizing that orders denying motions

27   to reopen are treated as final orders of removal).      Baldi


                                     2
 1   argues that the BIA abused its discretion in denying his

 2   motion to reopen and reconsider because he demonstrated

 3   sufficient positive equities to merit a discretionary grant

 4   of relief under former section 212(c) of the Immigration and

 5   Nationality Act.    This argument is without merit.

 6       An applicant may file one motion to reopen within 90

 7   days of the date on which a final administrative decision

 8   was rendered in the proceeding sought to be reopened, see

 9   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2),

10   and may file a motion to reconsider within 30 days of an

11   order, 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).

12   There is no dispute that Baldi’s May 2011 motion was

13   untimely because the agency issued the final administrative

14   order in January 2011.    Contrary to Baldi’s assertion, there

15   are no exceptions for the time limitation imposed on motions

16   to reconsider, and a motion based on additional evidence to

17   support a request for discretionary grant of 212(c) does not

18   fall within any exception provided for motions to reopen.

19   See 8 U.S.C. § 1229a(c)(6), (7)(C); 8 C.F.R. § 1003.2(b)(2),

20   (c)(3).   Nor is there an exception for what Baldi calls

21   “good cause” due to the delays he experienced in collecting

22   new evidence.     See 8 U.S.C. § 1229a(7)(C); 8 C.F.R.

23   § 1003.2(c)(3).     Therefore, whether construed as a motion to

                                     3
 1   reopen or to reconsider, the BIA did not abuse its

 2   discretion in denying Baldi’s motion as untimely.       See

 3   8 U.S.C. § 1229a(c)(6)(B), (7)(C).

 4       Furthermore, we lack jurisdiction to review Baldi’s

 5   challenge to the agency’s discretionary denial of section

 6   212(c) relief and the BIA’s discretionary denial of a

 7   request to reopen sua sponte, absent presentation of a

 8   constitutional claim or question of law.       See Avendano-

 9   Espejo v. Dep’t of Homeland Sec., 448 F.3d 503, 505 (2d Cir.

10   2006); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

11   We also lack jurisdiction to grant Baldi’s request for a

12   writ of mandamus because a petition for review is the

13   exclusive means to obtain review of the BIA’s adverse

14   determination.    See 8 U.S.C. § 1252(a)(5).

15       For the foregoing reasons, the petition for review is

16   DENIED.    Any pending request for oral argument in this

17   petition is DENIED in accordance with Federal Rule of

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

19   34.1(b).

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk




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