09-4290-ag
Gashi v. Holder
                                                                                BIA
                                                                       A 079 318 346


                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT

                           SUMMARY ORDER
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     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 22 nd day of June, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         JOSÉ A. CABRANES,
         DEBRA ANN LIVINGSTON,
                  Circuit Judges.
______________________________________

MUSTAFE GASHI,
         Petitioner,
                                                                   09-4290-ag
                  v.                                                      NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:                Gl en n  L.        F or mi ca,     New Ha v e n,
                               Connecticut.

FOR RESPONDENT:                Tony West, Assistant Attorney General,
                               Civil Division; Jennifer J. Keeney,
                               Senior Litigation Counsel; Jessica
                               R.C. Malloy, Trial Attorney, 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

DISMISSED.

    Petitioner Mustafe Gashi, a native and citizen of the

former Yugoslavia, seeks review of a September 16, 2009, order

of the BIA denying his motion to reopen.                      In re Mustafe Gashi,

No. A 079 318 346 (B.I.A. Sept. 16, 2009).                          We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    Gashi’s motion, which was indisputably untimely, sought

reopening     to    apply     for    adjustment          of    status.     However,

eligibility for adjustment of status is not an exception to

the applicable time limitation on motions to reopen.                            See 8

U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also

Matter   of   Yauri,     25    I.     &    N.     Dec.    103,    105    (BIA   2009)

(emphasizing “that untimely motions to reopen to pursue an

application for adjustment of status . . . do not fall within

any of the statutory or regulatory exceptions to the time

limits for motions to reopen before the Board”).                        Thus, to the

extent Gashi sought reopening to pursue such relief, he was

necessarily        invoking    the        BIA’s    authority      to     reopen   his

proceedings sua sponte.             See Mahmood v. Holder, 570 F.3d 466,


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469 (2d Cir. 2009) (“Because Mahmood’s untimely motion to

reopen was not excused by any regulatory exception, her motion

to    reopen   could    only    be   considered    upon       exercise      of   the

Agency’s sua sponte authority”); 8 C.F.R. § 1003.2(a).                           The

BIA’s determination as to whether it will exercise its sua

sponte authority is entirely discretionary and thus beyond the

scope of our jurisdiction.           See Ali v. Gonzales, 448 F.3d 515,

517 (2d Cir. 2006).           However, in Mahmood v. Holder, we found

that “where the Agency may have declined to exercise its sua

sponte authority because it misperceived the legal background

and thought, incorrectly, that a reopening would necessarily

fail, remand to the Agency for reconsideration in view of the

correct law is appropriate.”              Mahmood, 570 F.3d at 469; see

also   Aslam   v.   Mukasey,      537    F.3d   110,   115     (2d   Cir.    2008)

(drawing the distinction between discretionary and eligibility

determinations and finding that as a statutory matter we have

jurisdiction to review the latter but not the former).                       There

is no indication in this case that the BIA misperceived the

law    in   declining    to    reopen    Gashi’s   proceedings.             To   the

contrary, the BIA properly denied Gashi’s untimely motion as

a matter of discretion because it found that he failed to

establish      exceptional       circumstances         that    would     warrant

reopening.     See Ali, 448 F.3d at 517.

                                        -3-
     Furthermore, contrary to Gashi’s argument, the Supreme

Court,    in    Kucana    v.    Holder,     130     S.    Ct.   827     (2010),

“express[ed] no opinion on whether federal courts may review

the Board’s decision not to reopen removal proceedings sua

sponte,” noting that “Courts of Appeals have held that such

decisions are unreviewable because sua sponte reopening is

committed to agency discretion by law.”               See id. at 839 n.18.

Therefore, because the Supreme Court expressly declined to

reach    the   issue,    Ali   remains    good    law,    and   we   thus   lack

jurisdiction to consider the BIA’s discretionary denial of

Gashi’s untimely motion to reopen.               See Ali, 448 F.3d at 517.

     For the foregoing reasons, the petition for review is

DISMISSED.      As we have completed our review, 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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