         10-1963-ag
         Persaud v. Holder
                                                                                       BIA
                                                                               A073 540 452
                              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 30th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                    Circuit Judges.
11       ______________________________________
12
13       NAITRAM PERSAUD,
14                Petitioner,
15                                                              10-1963-ag
16                           v.                                 NAC
17
18       ERIC H. HOLDER, JR.,
19                Respondent.
20       ______________________________________
21
22       FOR PETITIONER:               Naitram Persaud, pro se.
23
24       FOR RESPONDENT:               Tony West, Assistant Attorney
25                                     General; Leslie McKay, Assistant
26                                     Director; Kelly J. Walls, Trial
27                                     Attorney, Office of Immigration
28                                     Litigation, Civil Division, United
29                                     States Department of Justice,
30                                     Washington, D.C.
31
32
 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       Naitram Persaud, a native and citizen of Guyana, seeks

 6   review of a May 12, 2010, decision of the BIA denying his

 7   motion to reopen his deportation proceedings.     In re

 8   Persaud, No. A073 540 452 (B.I.A. May 12, 2010).      We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history of the case.

11       As an initial matter, we lack jurisdiction to review

12   Persaud’s arguments with respect to the underlying denial of

13   asylum, because our review is limited to the BIA’s denial of

14   his motion to reopen, as that is the only order from which a

15   timely petition for review was filed.     See Ke Zhen Zhao v.

16   U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001).

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

18   of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517 (2d

19   Cir. 2006).   The BIA did not abuse its discretion in denying

20   Persaud’s motion to reopen as untimely.     See id.   A motion

21   to reopen must generally be filed no later than 90 days

22   after the date on which the final administrative decision

23   was rendered in the proceedings sought to be reopened.      See

                                   2
 1   8 U.S.C. § 1229a(c)(7)(C).   There is no dispute that

 2   Persaud’s motion to reopen, filed in February 2010, almost

 3   fourteen years after the BIA affirmed the IJ’s denial of his

 4   asylum application, was untimely.    See id.

 5   A.   Ineffective Assistance of Counsel

 6        The BIA did not abuse its discretion in declining to

 7   equitably toll the time period for filing Persaud’s motion

 8   to reopen because he failed to demonstrate that he exercised

 9   due diligence in pursuing reopening based on his claim of

10   ineffective assistance of counsel.    See Cekic v. INS, 435

11   F.3d 167, 170 (2d Cir. 2006). The BIA reasonably found that

12   other than the vague assertion that Persaud “tried to

13   contact” his former counsel, Persaud did not recount any

14   steps he took in pursuing his claim during the nearly

15   fourteen-year period between the BIA’s decision and his

16   motion to reopen, and thus failed to demonstrate that he

17   exercised due diligence in pursuing his claim “during the

18   entire period he . . . [sought] to toll.”      Rashid v.

19   Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).     In an affidavit

20   Persaud submitted before this Court, he asserts that his

21   former counsel told him that the BIA had not decided his

22   appeal, and that in mid-2001, he was no longer able to reach

23   his former counsel.   Persaud does not mention any steps he

                                   3
 1   took to ascertain the status of his appeal to the BIA during

 2   the more than eight years after he lost contact with his

 3   former counsel, until he discovered, in 2009, that his

 4   appeal had been denied.   In addition, because Persaud’s

 5   affidavit was not submitted to the BIA and is not part of

 6   the administrative record, it is of no moment here.    See 8

 7   U.S.C. § 1252(b)(4)(A) (mandating that “the court of appeals

 8   shall decide the petition only on the administrative

 9   record”).

10   B.   Discretionary Sua Sponte Reopening

11        In Persaud’s motion to reopen, he requested that the

12   BIA reopen his removal proceedings sua sponte to allow him

13   to pursue cancellation of removal and adjustment of status

14   based on his mother’s approved I-130 Petition.   The BIA, in

15   its discretion, may grant reopening outside the time

16   limitations for motions to reopen.   See 8 C.F.R.

17   § 1003.2(a).   Although we lack jurisdiction to review the

18   BIA’s discretionary decision not to grant reopening sua

19   sponte, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

20   2006), where the BIA declines to reopen sua sponte based on

21   a misperception of law, we will remand to the BIA, see

22   Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009).     We



                                   4
 1   have also explained that the BIA has a “duty to ‘consider

 2   the facts of record relevant to the motion’ and provide a

 3   ‘rational explanation’ for its ruling.”   Sheng Gao Ni v.

 4   BIA, 520 F.3d 125, 129-30 (2d Cir. 2008) (citing Melnitsenko

 5   v. Mukasey, 517 F.3d 42, 50 (2d Cir. 2008)).

 6       Here, the BIA erred in failing to address Persaud’s

 7   request for sua sponte reopening to allow him to pursue

 8   adjustment of status or cancellation of removal.    As the

 9   Government argues, however, remand would be futile because

10   Persaud is statutorily ineligible for cancellation of

11   removal and adjustment of status.   Adjustment of status is

12   available only if, inter alia, “an immigrant visa is

13   immediately available to [the alien] at the time his

14   application is filed.”   8 U.S.C. § 1255(a).   Because

15   Persaud’s priority date is not current, remand to the BIA

16   for it to consider whether to reopen his deportation

17   proceedings to allow him to apply for adjustment of status

18   would be futile.   See Conteh v. Gonzales, 461 F.3d 45, 64

19   (1st Cir. 2006).

20       Remand for the BIA to consider Persuad’s motion to

21   reopen sua sponte based on his application for cancellation

22   of removal would likewise be futile because he is ineligible

23   for this form of relief. Because Persaud’s proceedings

                                   5
 1   commenced (and even concluded) prior to the effective date

 2   of the Illegal Immigration Reform and Immigrant

 3   Responsibility Act (“IIRIRA”), the provisions regarding

 4   cancellation of removal do not apply to him.     See 8 U.S.C.

 5   § 1229b(b) (setting forth eligibility requirements for

 6   cancellation of removal).     Instead, Persaud was required to

 7   seek suspension of deportation under 8 U.S.C. § 1254(a)(1)

 8   (repealed in 1996 with the enactment of IIRIRA), but failed

 9   to do so.    Cf. Arenas-Yepes v. Gonzales, 421 F.3d 111, 116-

10   17 (2d Cir. 2005).     Accordingly, remand for the BIA to

11   consider in the first instance whether sua sponte reopening

12   is warranted in its discretion would be futile.     See Alam v.

13   Gonzales, 438 F.3d 184, 187-188 (2d Cir. 2006) (remand is

14   not required where “there is no realistic possibility that .

15   . . the IJ or BIA would have reached a different

16   conclusion”).

17   C.   Pending Motions

18        Persaud moves to supplement his brief with evidence

19   that criminal charges against him were dismissed, which he

20   contends is relevant to his eligibility for cancellation of

21   removal.    However, because this evidence is not part of the

22   administrative record and was not submitted to the BIA it



                                     6
 1   has no bearing on whether the BIA abused its discretion in

 2   denying his motion to reopen.       See 8 U.S.C. § 1252(b)(4)(A).

 3   Finally, because we deny Persaud’s petition for review on

 4   the merits, we do not reach the Government’s motion to

 5   dismiss based on the fugitive disentitlement doctrine.

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

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