09-2523-ag
Sarkar v. Holder
                                                                                BIA
                                                                        A073 534 922
                     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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of October, two thousand ten.

PRESENT:
         REENA RAGGI,
         RICHARD C. WESLEY,
         GERARD E. LYNCH,
              Circuit Judges.
________________________________________

RAJA SARKAR,

                   Petitioner,

                   v.                                   09-2523-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,

         Respondent.
_________________________________________

FOR PETITIONER:                   Raja Sarkar, pro se

FOR RESPONDENT:                   Tony West, Assistant Attorney
                                  General; William C. Peachey,
                                  Assistant Director; Daniel E.
                          Goldman, Senior Litigation Counsel,
                          Office of Immigration Litigation,
                          Civil Division, United States
                          Department of Justice, Washington,
                          D.C.

    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    Raja    Sarkar,   a    native   and   citizen   of

Bangladesh, seeks review of the June 11, 2009, order of the

BIA denying his motion to reopen.       In re Raja Sarkar, No. A073

534 922 (B.I.A. June 11, 2009).           We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

    As a preliminary matter, we note that because our review

is limited to the BIA’s June 2009 decision, we do not reach

Sarkar’s challenges to the agency’s earlier decisions. See Ke

Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d

Cir. 2001); see also Stone v. INS, 514 U.S. 386, 405-06

(1995).

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

abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006).    To the extent the BIA evaluated country


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conditions evidence, we review its decision for substantial

evidence.     See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

Cir. 2008).

    The BIA did not abuse its discretion in denying Sarkar’s

motion to reopen as untimely and number-barred.                     In general,

a motion to reopen must be filed no later than 90 days after

the date on which the final administrative decision was

rendered in the proceedings sought to be reopened, and only

one such motion may be filed.                 See 8 C.F.R. § 1003.2(c)(2).

There is no dispute that Sarkar’s November 2008 motion to

reopen was filed more than six years after the BIA affirmed

the IJ’s denial of his asylum application.                     Because that

motion was Sarkar’s third, the motion was both untimely and

numerically barred.             See id.       In these circumstances, the

BIA’s denial of the motion to reopen was not an abuse of

discretion.       Although no time and number limitations apply

where   the   petitioner         demonstrates      “changed    circumstances

arising in the country of nationality or in the country to

which deportation has been ordered, if such evidence is

material    and     was   not    available      and   could   not    have   been

discovered     or    presented     at     [his]   previous    hearing,”      id.

§ 1003.2(c)(3)(ii), the BIA reasonably concluded that Sarkar


                                          3
failed to demonstrate that he satisfied the requirements of

this exception.

    While    Sarkar     argues   that   the   BIA   erred   in   ignoring

evidence of changed country conditions submitted with his

motion to reopen, the evidence he cites was submitted to the

BIA with his November 2006 motion to reopen.            That motion was

denied by the BIA in a June 2007 decision that we subsequently

upheld.    See Sarkar v. Mukasey, 300 F. App’x 98, 99 (2d Cir.

2008) (unpublished). Because we have previously held that, in

light of the evidence here at issue, the agency did not err in

declining to reopen Sarkar’s proceedings, we reach the same

conclusion under the doctrine of the law of the case given the

absence of any “cogent and compelling reason[]” not to do so.

United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)

(internal quotation marks omitted); accord Johnson v. Holder,

564 F.3d 95, 99 (2d Cir. 2009).

    Even construing Sarker’s pro se petition for review

broadly, see Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d

Cir. 2002), to include the argument that the BIA ignored

evidence    that   he   submitted   for   the   first   time     with   his

November 2008 motion, the argument is without merit. See Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d


                                    4
Cir. 2006); Wei Guang Wang v. BIA, 437 F.3d 270, 274-75 (2d

Cir. 2006).   For the foregoing reasons, the BIA reasonably

found that Sarker failed to demonstrate a material change in

country conditions, and did not abuse its discretion in

denying his motion to reopen as untimely.      See Kaur v. BIA,

413    F.3d   232,    233-34   (2d   Cir.   2005);   8   C.F.R.

§ 1003.2(c)(3)(ii).

      Accordingly, the petition for review is DENIED.     As we

have completed our review, any stay of removal that the Court

previously granted in this petition is VACATED, and any

pending motion for a stay of removal in this petition is

DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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