     18-112
     Ibric v. Barr
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A029 283 819

                          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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 15th day of May, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            DENNIS JACOBS,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   KEMAL PUDOVIC IBRIC,
14            Petitioner,
15
16                   v.                                          18-112
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Peter E. Torres, New York, NY.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Carl H.
27                                    McIntyre, Assistant Director;
28                                    Justin R. Markel, Senior
29                                    Litigation Counsel, Office of
30                                    Immigration Litigation, United
31                                    States Department of Justice,
32                                    Washington, DC.
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        Petitioner Kemal Pudovic Ibric, a native of the former

6    Yugoslavia and citizen of Montenegro, seeks review of a

7    December 19, 2017, decision of the BIA affirming the July 26,

8    2017, decision of an Immigration Judge (“IJ”) denying his

9    motion to reopen, and denying his motion to remand in the

10   first instance.   In re Kemal Pudovic Ibric, No. A029 283 819

11   (B.I.A. Dec. 19, 2017), aff’g No. A029 283 819 (Immig. Ct.

12   N.Y.C. July 26, 2017).      We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14       The applicable standards of review are well established.

15   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

16   2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149,

17   157 (2d Cir. 2005).    The agency did not abuse its discretion

18   in denying as untimely Ibric’s motion to reopen for adjustment

19   of status and his motion to remand to apply for suspension of

20   deportation   under   the   Nicaraguan   Adjustment   and   Central

21   American Relief Act of 1997 (“NACARA”).
                                      2
1          “A motion to reopen must be filed within 90 days of the

2    date of entry of a final administrative order of removal,

3    deportation, or exclusion, or on or before September 30, 1996,

4    whichever is later.”           8 C.F.R. § 1003.23(b)(1).                In this

5    case, the IJ’s deportation order became final in 1990, and

6    thus Ibric had until September 30, 1996, to timely file his

7    motion to reopen.         See id.          Although the parties and the

8    agency      incorrectly      relied   on      the   regulatory       provision

9    providing 90 days to file a motion to reopen rather than the

10   later September 30, 1996, deadline, that error was harmless

11   because      Ibric’s   November       2016    motion      was   indisputably

12   untimely filed more than 20 years after that date.                      See id.

13   Ibric’s     lengthy    residence,      good    character,       U.S.    citizen

14   children, and purported eligibility for adjustment of status

15   did   not    excuse    the    time    limitation.         See    8   U.S.C.     §

16   1229a(c)(7)(C)(ii)-(iv)         (listing      exceptions);       8     C.F.R.   §

17   1003.23(b)(4) (same); see also Li Yong Zheng v. U.S. Dep’t of

18   Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (providing that

19   changed     personal    circumstances         do    not   excuse     the   time

20   limitation for motions to reopen); Matter of Yauri, 25 I. &

21   N. Dec. 103, 105 (BIA 2009) (“untimely motions to reopen to
                                            3
1    pursue an application for adjustment of status . . . do not

2    fall within any of the statutory or regulatory exceptions to

3    the time limits for motions to reopen”).

4        The BIA also did not err in finding untimely Ibric’s

5    motion to remand to apply for suspension of deportation under

6    NACARA.   “An alien filing a motion to reopen proceedings

7    pursuant to . . . NACARA, may initially file a motion to

8    reopen . . . , but the motion must be filed no later than

9    September 11, 1998.”     8 C.F.R. § 1003.43(e)(1).     Because

10   Ibric filed his motion to apply for suspension of deportation

11   under NACARA in 2016, more than 18 years after the deadline,

12   the BIA did not abuse its discretion in denying that motion

13   as untimely.   See id.

14       Because Ibric did not meet any exception to the time

15   limitation, “his motion to reopen could only be considered

16   upon exercise of the [BIA’s] sua sponte authority.”    Mahmood

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

18   jurisdiction to review the agency’s “entirely discretionary”

19   decision declining to reopen proceedings sua sponte.    Ali v.

20   Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).   Although we may

21   remand if the agency “declined to exercise its sua sponte
                                   4
1    authority because it misperceived the legal background and

2    thought, incorrectly, that a reopening would necessarily

3    fail,” Mahmood, 570 F.3d at 469, Ibric has not demonstrated

4    that the agency misperceived the law.

5        Contrary to Ibric’s contention, it is not the agency’s

6    policy to reopen sua sponte when noncitizens with outstanding

7    deportation     orders    become     eligible      to    adjust     to   lawful

8    status.     See Matter of Yauri, 25 I. & N. Dec. at 105 (“We

9    emphasize    that     untimely     motions   to     reopen     to    pursue   an

10   application for adjustment of status . . . will ordinarily be

11   denied.”); see also In re J-J-, 21 I. & N. Dec. 976, 984 (BIA

12   1997) (“The power to reopen on our own motion is not meant to

13   be used as a general cure for filing defects or to otherwise

14   circumvent the regulations, where enforcing them might result

15   in hardship.”).        And there is no merit to Ibric’s argument

16   that NACARA and 8 U.S.C. § 1255(i) constitute fundamental

17   changes    in   law   that   required      the     agency    to     reopen    his

18   proceedings sua sponte in 2017 because any change in the law

19   occurred more than 20 years earlier when those statutes were

20   enacted.    See Tanov v. INS, 443 F.3d 195, 199 (2d Cir. 2006);

21   Delgado    v.   Mukasey,     516    F.3d     65,    69   (2d      Cir.   2008).
                                           5
1    Accordingly, Ibric has not demonstrated that the agency’s

2    decision declining to reopen sua sponte was based on a

3    misperception of the law, and we are without jurisdiction to

4    further review that discretionary decision.       See Ali, 448

5    F.3d at 518.

6        For the foregoing reasons, the petition for review is

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

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

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

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe
16                                 Clerk of Court




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