         09-3662-ag
         Abochoayra v. Holder
                                                                                       BIA
                                                                               A075 924 898
                                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 30 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                       Circuit Judges.
12       ______________________________________
13
14       MOHAMED SALAME ABOCHOAYRA,
15                Petitioner,
16                                                              09-3662-ag
17                          v.                                  NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, DEPARTMENT OF
21       HOMELAND SECURITY,
22                Respondents.
23       ______________________________________
24
25       FOR PETITIONER:                 Amy N. Gell, Gell & Gell, New York,
26                                       New York.
27
28       FOR RESPONDENTS:                Tony West, Assistant Attorney
29                                       General, Civil Division; Blair T.
30                                       O’Connor, Assistant Director; Don G.
31                                       Scroggin, Trial Attorney, Office of
32                                       Immigration Litigation, United
33                                       States Department of Justice,
34                                       Washington, D.C.
35
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

4    is DENIED.

5        The Petitioner, Mohamed Salame Abochoayra, a native and

6    citizen of Egypt, seeks review of an August 24, 2009, order

7    of the BIA denying his motion to reopen his removal

8    proceedings.    In re Mohamed Salame Abochoayra, No. A 075 924

9    898 (B.I.A. Aug. 24, 2009).    We assume the parties’

10   familiarity with the underlying facts and procedural history

11   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).    Here, the BIA did not abuse its

15   discretion in denying Abochoayra’s motion to reopen as

16   untimely and number-barred.    It was his second motion, and

17   it was filed over three years after the BIA issued its final

18   order of removal. See 8 C.F.R. § 1003.2(c)(2).

19       Abochoayra argued that country conditions had changed

20   regarding the treatment of Muslim men married to non-Muslims

21   in Egypt.    The time and numerical limitations on motions to

22   reopen shall not apply to motions based on “changed

23   circumstances in the country of nationality . . . to which

24   deportation has been ordered, if such evidence is material

                                    2
1    and was not available and could not have been discovered or

2    presented at the previous hearing; [8 C.F.R. § 1003.2(c)(2)]

3    See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

4    2008); see also Siewe v. Gonzales, 480 F.3d 160, 167-168 (2d

5    Cir. 2007).     However, we agree with the BIA that the

6    Petitioner failed to demonstrate such a change had occurred

7    in that country.

8        Abochoayra additionally sought reopening to apply for

9    adjustment of status.    However, eligibility for adjustment

10   of status is not an exception to the applicable time

11   limitation on motions to reopen. See 8 U.S.C.

12   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also

13   Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009).

14   Therefore, to the extent Abochoayra sought reopening to

15   pursue such relief, he was necessarily invoking the BIA’s

16   authority to reopen his proceedings sua sponte. See Mahmood

17   v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); 8 C.F.R. §

18   1003.2(a).    The BIA’s determination as to whether it will

19   exercise its sua sponte authority is entirely discretionary

20   and thus beyond the scope of our jurisdiction. See Ali v.

21   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).     True, “where

22   the Agency may have declined to exercise its sua sponte

23   authority because it misperceived the legal background and

24   thought, incorrectly, that a reopening would necessarily

                                    3
1    fail, remand to the Agency for reconsideration in view of

2    the correct law is appropriate.”    Mahmood 570 F.3d at 469.

3    However, remand is inappropriate in this case because, as

4    the BIA observed, Abochoayra’s priority date was not

5    current.    See Ali, 448 F.3d at 517.   Contrary to

6    Abochoayra’s argument in this Court, his priority date was

7    not current at the time his motion to reopen was filed or

8    when the BIA disposed of the motion.     Compare June 2009 Visa

9    Bulletin, http://www.travel.state.gov/visa/bulletin/

10   bulletin_4497.html (last visited Sept. 21, 2010) (indicating

11   that visas for skilled workers (third preference) were

12   unavailable) with August 2009 Visa Bulletin,

13   http://www.travel.state.gov/visa/bulletin/bulletin_4539.

14   html (last visited Sept. 21,2010) (same).

15       For the foregoing reasons, the petition for review is

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

17   removal that the Court previously granted in this petition

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

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

20   oral argument in this petition is DENIED in accordance with

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

22   Circuit Local Rule 34.1(b).

23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
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