         10-4614-ag
         Ruiz Ruiz v. Holder
                                                                                           BIA
                                                                                   A098 478 201
                                    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 New
 4       York, on the 29th day of November, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _________________________________________
12
13       JUAN JAIRO RUIZ RUIZ,
14                Petitioner,
15
16                             v.                                  10-4614-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                    Glenn L. Formica, New Haven,
24                                          Connecticut.
25
26       FOR RESPONDENT:                    Tony West, Assistant Attorney General;
27                                          Richard M. Evans, Assistant Director;
28                                          Benjamin J. Zeitlin, Trial Attorney,
29                                          Office of Immigration Litigation,
30                                          United States Department of Justice,
31                                          Washington, D.C.
 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 DISMISSED.

 5       Petitioner Juan Jairo Ruiz Ruiz, a native and citizen of

 6   Colombia, seeks review of an October 19, 2010, order of the

 7   BIA denying his motions to reconsider and reopen.     In re Juan

 8   Jairo Ruiz Ruiz, No. A098 478 201 (B.I.A. Oct. 19, 2010).       We

 9   assume the parties’ familiarity with the underlying facts and

10   procedural history of the case.

11       It is undisputed that Ruiz Ruiz’s motion to reopen was

12   untimely and number-barred because it was filed more that 90

13   days after the agency’s final administrative decision and it

14   was his second motion to reopen.   See 8 U.S.C.

15   § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).     Moreover,

16   Ruiz Ruiz does not argue that the BIA should have found the

17   time and numerical limitations for filing his motion excused

18   by one of the statutory or regulatory exceptions; rather, his

19   only contention is that the BIA abused its discretion by

20   declining to exercise its sua sponte reopening authority.       We

21   lack jurisdiction to consider the BIA’s “entirely

22   discretionary” decision regarding whether to reopen removal


                                   2
 1   proceedings sua sponte.   See Ali v. Gonzales, 448 F.3d 515,

 2   518 (2d Cir. 2006); accord Mahmood v. Holder, 570 F.3d 466,

 3   469 (2d Cir. 2009); see also Luna v. Holder, 637 F.3d 85, 96

 4   (2d Cir. 2011) (stating that court lacks jurisdiction to

 5   review denials of “regulatory (i.e., sua sponte) motions to

 6   reopen” because they “are committed to agency discretion”).

 7   Although remand is appropriate “where the Agency may have

 8   declined to exercise its sua sponte authority because it

 9   misperceived the legal background and thought, incorrectly,

10   that a reopening would necessarily fail,” Mahmood, 570 F.3d at

11   469, the BIA made no such error here.   See Matter of Velarde-

12   Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (holding that the

13   agency may grant a motion to reopen in the exercise of its

14   discretion to pursue an adjustment application if, among other

15   factors, the motion was timely filed and not numerically

16   barred); see also Matter of Yauri, 25 I. & N. Dec. 103, 105

17   (BIA 2009) (emphasizing “that untimely motions to reopen to

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

19   fall within any of the statutory or regulatory exceptions to

20   the time limits for motions to reopen before the Board and

21   will ordinarily be denied”) (citing 8 U.S.C.

22   § 1229a(c)(7)(C)(ii)-(iv) and 8 C.F.R. § 1003.2(c)(3)).


                                    3
 1       Ruiz Ruiz does not challenge the BIA’s denial of his

 2   motion to reconsider.

 3       For the foregoing reasons, the petition for review is

 4   DISMISSED.    As we have completed our review, any stay of

 5   removal that the Court previously granted in this petition is

 6   VACATED, and any pending motion for a stay of removal in this

 7   petition is DISMISSED as moot. Any pending request for oral

 8   argument in this petition is DENIED in accordance with Federal

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

10   Rule 34(b).

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk
13
14




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