    12-2345
    Ragbir v. Lynch
                                                                                       BIA
                                                                               A044 248 862

                           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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    4th day of March, two thousand sixteen.

    PRESENT:
             RALPH K. WINTER,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    RAVIDATH LAWRENCE RAGBIR,
             Petitioner,

                      v.                                             12-2345
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Alina Das, Attorney; Kendal Nystedt,
                                        Jessica Rofé, Legal Interns,
                                        Washington Square Legal Services,
                                        Inc., New York, New York.
FOR RESPONDENT:                  Benjamin C. Mizer, Acting Assistant
                                 Attorney General; Douglas E.
                                 Ginsburg, Assistant Director; Karen
                                 L. Melnik, Trial Attorney, Office of
                                 Immigration Litigation, United
                                 States Department of Justice,
                                 Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a

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

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

DISMISSED.

       Petitioner Ravidath Lawrence Ragbir, a native and citizen

of Trinidad and Tobago, seeks review of a May 15, 2012, decision

of the BIA, denying his motion to reconsider and reopen.            In

re Ravidath Lawrence Ragbir, No. A044 248 862 (B.I.A. May 15,

2012).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

       We lack jurisdiction to review a final order of removal,

including an order denying a motion to reconsider and reopen,

against an alien, such as Ragbir, “who is removable by reason

of   having    committed   [an    aggravated   felony].”    8 U.S.C.

§ 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of

Justice, 400 F.3d 99, 102 (2d Cir. 2005); Durant v. INS, 393

F.3d    113,   115-16   (2d   Cir.   2004).     Although   we   retain
                                     2
jurisdiction to consider constitutional claims and questions

of   law,   see   8 U.S.C.   § 1252(a)(2)(D),   Ragbir     raises    no

colorable    constitutional    claims   or   questions    of   law   in

challenging the BIA’s denial of his motion as untimely, see

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008).

He did not argue before the BIA that the time period for filing

his motion should be equitably tolled, and he was not eligible

for an exception to the applicable time limitations based on

his purported eligibility to adjust status.              See 8 U.S.C.

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

Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009).

     Because Ragbir’s untimely filing “was not excused by any

regulatory exception, his motion . . . could only be considered

upon exercise of the Agency’s sua sponte authority.”           Mahmood

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

§ 1003.2(a).      Although the agency’s exercise of its sua sponte

authority “is entirely discretionary” and beyond the scope of

this Court’s review, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

2006), remand is appropriate “where the Agency may have declined

to exercise its sua sponte authority because it misperceived

the legal background and thought, incorrectly, that a reopening
                                  3
would necessarily fail,” Mahmood, 570 F.3d at 469.             The BIA made

no such error here.

Motion to Reconsider

     Ragbir’s conviction for one count of conspiracy to commit

wire fraud and six counts of wire fraud in violation of 18 U.S.C.

§ 371, 1343 & 2 rendered him removable for having been convicted

of   an     aggravated       felony       as    defined    in       8 U.S.C.

§ 1101(a)(43)(M)(i)—“an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

$10,000.”     He argues that the BIA failed to consider his

argument that his conviction was not categorically a “fraud or

deceit” aggravated felony in light of the Supreme Court’s

intervening decision in Skilling v. United States, 561 U.S. 358

(2010),   which    limited    the     broad    language   of    §   1343   to

criminalize      only   certain       conduct.      However,        Ragbir’s

conclusory assertion in his motion (clarified in his briefs

here) was insufficient to apprise the BIA of his argument.                 In

any event, the BIA reasonably construed his lengthy discussion

of the jury instructions in his criminal proceedings as a

challenge   to    his   underlying        conviction,     which     was    not


                                      4
appropriately raised in removal proceedings.            See Lanferman v.

BIA, 576 F.3d 84, 88 (2d Cir. 2009).

      Regardless, Ragbir’s argument is based on the premise,

rejected by the Supreme Court, that a “fraud or deceit”

aggravated felony requires that the underlying statute of

conviction contain fraud as an element.              See Kawashima v.

Holder, 132 S. Ct. 1166, 1172 (2012).               While pre-Skilling

convictions under 18 U.S.C. § 1343, including Ragbir’s, may have

included conduct broader than that categorized as fraud,

including    schemes     that   merely     failed    to   comport   with

“fundamental honesty, fair play and right dealing,” Skilling,

561   U.S.   at   418   (Scalia,   J.    concurring),     such   offenses

nevertheless “involve[] . . . deceit” and thus categorically

constitute crimes involving “fraud or deceit” under 8 U.S.C.

§ 1101(a)(43)(M)(i).        See Kawashima, 132 S. Ct. at 1172

(defining deceit); see also Doe v. Att’y Gen., 659 F.3d 266,

274-75 (3d Cir. 2011).

      The BIA also did not misperceive the law in declining to

remand for reconsideration of Ragbir’s removability in light

of the Supreme Court’s intervening decision in Nijhawan v.

Holder, 557 U.S. 29 (2009), which clarified that the agency
                                   5
should apply a circumstance-specific approach to analyze the

loss amount for purposes 8 U.S.C. § 1101(a)(43)(M)(i).       We

adhere to our decision rejecting this argument in Ragbir’s

previous petition for review.   See Johnson v. Holder, 564 F.3d

95, 99 (2d Cir. 2009) (“The law of the case doctrine commands

that ‘when a court has [explicitly or implicitly] ruled on an

issue, that decision should generally be adhered to by that

court in subsequent stages in the same case.’” quoting United

States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)).

    As we previously noted, remand for reconsideration in light

of Nijhawan is not warranted given that the agency applied a

circumstance-specific approach to the loss determination in

Ragbir’s case.   And, “[d]espite repeated adjournments, Ragbir

failed to obtain [sentencing and related] transcripts or to

introduce other evidence in opposition to the government’s loss

calculations.”   Ragbir v. Holder, 389 F. App’x 80, 85 (2d Cir.

2010) (summary order).   Furthermore, although Ragbir submitted

in support of reconsideration and reopening evidence that the

victim’s loss in his case might have been offset by two

properties used to secure two of the six fraudulent loans for

which he was convicted, that evidence is insufficient to support
                                6
“his urged inference that the indicted loans were repaid nearly

in full,” i.e., that the victim has recouped all but $10,000

for the $426,048.03 in indicted loans.             Id. at 84 n.5.

      Accordingly, we find that the BIA did not misperceive the

law in declining to reconsider its order of removal.                     See

Mahmood, 570 F.3d at 469; see also Ali, 448 F.3d at 517.

Motion to Reopen

      The BIA also did not misperceive the law in declining to

reopen sua sponte.      Contrary to Ragbir’s contention, the BIA

did   not   fail   to   adhere   to       the   standard   in   Matter   of

Velarde-Pacheco, 23 I & N Dec. 253 (BIA 2002).             Ragbir did not

satisfy the first requirement in Velarde-Pacheco (that he file

a timely motion), and thus the BIA was not required to evaluate

the remaining Velarde-Pacheco factors or consider Ragbir’s

evidence of his purported eligibility to adjust status.                  See

id. at 256.   Moreover, there is no merit to Ragbir’s due process

claim because a grant of adjustment of status is discretionary,

and an alien has no constitutionally protected liberty or

property interest in a grant of discretionary relief.             See Yuen

Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); see also

Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
                                      7
     Accordingly, because the BIA did not misperceive the law

in   declining   to   reconsider       or   reopen   Ragbir’s   removal

proceedings, remand is not warranted, see Mahmood, 570 F.3d at

469; see also Ali, 448 F.3d at 517, and we are without

jurisdiction over his petition, see 8 U.S.C. § 1252(a)(2)(C).

     For the foregoing reasons, the petition for review is

DISMISSED.   As we have completed our review, Ragbir’s motion

for leave for law students to argue is DENIED.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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