    16-616
    Fichera v. Sessions
                                                                                       BIA
                                                                               A012 850 842
                               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
    17th day of October, two thousand seventeen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    PAOLO S. FICHERA,

                                Petitioner,

                          v.                                         16-616
                                                                     NAC

    JEFFERSON B. SESSIONS, III, UNITED
    STATES ATTORNEY GENERAL,
                   Respondent.
    _____________________________________

    FOR PETITIONER:                           Simone Bertollini, Paul F. O’Reilly,
                                              Law Offices of Simone Bertollini,
                                              New York, NY.

    FOR RESPONDENT:                           Benjamin C. Mizer, Assistant
                                              Attorney General; Shelley R. Goad,
                                              Assistant Director; Tim Ramnitz,
                                              Attorney, Office of Immigration
                            Litigation, United States
                            Department of Justice, Washington,
                            DC.

    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

DENIED.

    Petitioner Paolo S. Fichera, a native and citizen of Italy,

seeks review of a February 5, 2016, decision of the BIA denying

his motion to reopen.    In re Paolo S. Fichera, No. A012 850 842

(B.I.A. Feb. 5, 2016).   We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    The petition for review is timely to challenge only the

BIA’s denial of reopening, which we review for abuse of

discretion.    Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

83, 89-90 (2d Cir. 2001); Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006).   We find no abuse of discretion here.   An alien

may move to reopen within 90 days of the final removal order.

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c).      The motion to

reopen must be based on new evidence that was not previously

available.    8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(1).

And although the BIA may exercise its authority to reopen sua

sponte, 8 C.F.R. § 1003.2(a), we lack jurisdiction to review

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the agency’s denial of sua sponte reopening because such a

decision is “entirely discretionary,” Ali, 448 F.3d at 518.

    Fichera’s October 2015 motion to reopen was untimely filed

more than two years after the September 2013 removal order.      8

U.S.C. § 1229a(c)(7)(C)(i).       It does not fall into a statutory

or regulatory exception to the time limitation for motions to

reopen.      8    U.S.C.     §    1229a(c)(7)(C)(ii);   8   C.F.R.

§ 1003.2(c)(3).    Fichera asserted that the time to file his

motion should be equitably tolled based on the Supreme Court’s

April 2013 decision in Moncrieffe v. Holder, 133 S. Ct. 1678

(2013), and Connecticut’s amendment of its marijuana laws.

This argument is misplaced.      Even assuming timeliness, the BIA

denied reopening for lack of new evidence.       INS v. Abudu, 485

U.S. 94, 104 (1988).       These legal developments are not new

evidence and could have been raised in Fichera’s original

proceedings or motion to reconsider.         Furthermore, neither

development changes the outcome of Fichera’s case because

neither his removal order, nor the denial of relief, was based

on a marijuana conviction.       Fichera was ordered removed based

on his 1997 conviction for possession of narcotics and his 2000

burglary conviction.   And the agency denied relief from removal

based solely on the burglary conviction.

                                  3
    Given the untimely filing and lack of new evidence, the only

basis for reopening was the BIA’s decision not to exercise its

authority to reopen sua sponte, which we lack jurisdiction to

review.   Ali, 448 F.3d at 518.    While we have remanded where

the BIA misperceived the law, that is not the case here.

Mahmood v. Holder, 570 F.3d 466, 471 (2d Cir. 2009).    The BIA

did not find Fichera ineligible for relief; it merely concluded

that there were no exceptional circumstances warranting sua

sponte reopening.

    Our recent decision in Harbin v. Sessions, 860 F.3d 58 (2d

Cir. 2017), may provide Fichera with a separate basis to

challenge the controlled substance ground of removability.    We

express no opinion on the merits of such a challenge, which must

be raised before the BIA in the first instance.

    We have considered Fichera’s remaining arguments and found

them to be without merit. For the foregoing reasons, the

petition for review is DENIED.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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