         11-829
         Gyulnazaryan v. Holder
                                                                                       BIA
                                                                               A097 703 120
                                  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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       AMAHITE GYULNAZARYAN,
14                Petitioner,
15
16                           v.                                 11-829
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                   Tatiana S. Aristova, Plainsboro, NJ.
24
25       FOR RESPONDENT:                   Stuart F. Delery, Acting Assistant
26                                         Attorney General; Luis E. Perez,
27                                         Senior Litigation Counsel; Elizabeth
28                                         D. Kurlan, Trial Attorney, Office of
29                                         Immigration Litigation, United
30                                         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 DENIED in part and DISMISSED in part.

 5       Petitioner Amahite Gyulnazaryan, a native and citizen

 6   of Armenia, seeks review of a January 31, 2011, decision of

 7   the BIA denying her motion to reconsider and reopen.      In re

 8   Amahite Gyulnazaryan, No. A097 703 120 (B.I.A. Jan. 31,

 9   2011).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11       We review the BIA’s denial of a motion to reopen or

12   reconsider for abuse of discretion.   See Ali v. Gonzales,

13   448 F.3d 515, 517 (2d Cir. 2006) (per curiam); Jin Ming Liu

14   v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam).

15   Gyulnazaryan does not challenge the BIA’s findings that:

16   (1) as a motion to reopen, her motion was untimely and

17   number-barred; and (2) as a motion to reconsider, her motion

18   failed to specify a factual or legal error in its June 2010

19   denial of reopening on the ground that she was not prima

20   facie eligible for adjustment of status because an immigrant

21   visa was not immediately available to her.   Therefore,

22   Gyulnazaryan has waived any challenge to the BIA’s

23   dispositive findings that she did not satisfy the standards

                                   2
 1   for reopening or reconsideration.    See Shunfu Li v. Mukasey,

 2   529 F.3d 141, 146 (2d Cir. 2008) (where petitioner fails to

 3   challenge dispositive agency findings, “any challenge to

 4   these findings is . . . waived.”).

 5          Gyulnazaryan argues principally that the BIA should

 6   have considered, on its own initiative, that a visa in her

 7   category, spouses of lawful permanent residents, was

 8   available for three months while her motion to reconsider

 9   and reopen was pending at the BIA, and thus that she was

10   eligible for adjustment during this period even though the

11   category retrogressed and she no longer had a visa

12   immediately available to her by the time the BIA denied her

13   motion in January 2011.    This claim is a challenge to the

14   BIA’s denial of sua sponte reopening pursuant to 8 C.F.R.

15   § 1003.2(a), which is an “entirely discretionary” decision

16   which we lack jurisdiction to review.    See Ali, 448 F.3d at

17   518.    Furthermore, as the government notes, this claim is

18   unexhausted, as Gyulnazaryan did not raise it to the BIA

19   either in her original motion to reconsider and reopen or in

20   a supplemental filing after her visa category became

21   current.    Therefore, we decline to consider this claim.     See

22   8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice,

23   480 F.3d 104, 107 n.1 (2d Cir. 2007).

                                    3
1        For the foregoing reasons, the petition for review is

2    DENIED in part and DISMISSED in part.   As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED, and any pending motion

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate

8    Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk




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