17-3170 Daikoku v. Barr BIA A079 713 216

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 BARRINGTON D. PARKER, 8 DEBRA ANN LIVINGSTON, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ALEX R. DAIKOKU, AKA ALEX RUBEN 14 DAIKOKU, 15 Petitioner, 16 17 v. 17-3170 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Michael Musa-Obregon, White 25 Plains, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Shelley R. Goad, 29 Assistant Director; Julia J. 30 Tyler, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 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 Alex R. Daikoku, a native and citizen of

6 Panama, seeks review of a September 6, 2017, decision of the

7 BIA, denying his third motion to reopen. In re Alex R.

8 Daikoku, No. A079 713 216 (B.I.A. Sept. 6, 2017). We assume

9 the parties’ familiarity with the underlying facts and

10 procedural history in this case.

11 The applicable standards of review are well established.

12 See Jian Hui Shao v. Mukasey,

(2d Cir.

13 2008). In his motion to reopen, Daikoku asserted that his

14 removal proceedings should be reopened because the visa

15 petition that his U.S. citizen wife had filed on his behalf

16 had been approved and he was eligible to apply for a waiver

17 of inadmissibility and adjustment of status.

18 The BIA did not abuse its discretion in denying

19 Daikoku’s 2016 motion as untimely and number barred because

20 it was his third motion to reopen filed more than three

21 years after his removal order became final in 2012. See 2 1 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (limiting noncitizens to

2 one motion to reopen and setting a 90-day deadline for such

3 motions);

(c)(2) (same). His wife’s

4 approved visa petition and his purported eligibility for a

5 waiver of inadmissibility and adjustment of status did not

6 excuse the applicable time and number limitations. See

7 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv) (listing exceptions);

8

(c)(3) (same); see also Li Yong Zheng v.

9 U.S. Dep’t of Justice,

(2d Cir. 2005)

10 (providing that changed personal circumstances do not

11 excuse the time and number limitations for motions to

12 reopen); Matter of Yauri,

(BIA

13 2009) (“[U]ntimely motions to reopen to pursue an

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

15 within any of the statutory or regulatory exceptions to the

16 time limits for motions to reopen before the Board

17 . . . .”).

18 Because Daikoku did not meet any exception to the time

19 and number limitations, “his motion to reopen could only be

20 considered upon exercise of the [BIA’s] sua sponte

21 authority.” Mahmood v. Holder,

(2d Cir. 3 1 2009). We lack jurisdiction to review the agency’s “entirely

2 discretionary” decision declining to reopen proceedings sua

3 sponte. Ali v. Gonzales,

(2d Cir. 2006).

4 Although we may remand if the agency “declined to exercise

5 its sua sponte authority because it misperceived the legal

6 background and thought, incorrectly, that a reopening would

7 necessarily fail,” Mahmood,

, Daikoku has not

8 demonstrated that the BIA misperceived the law.

9 Daikoku argues that the BIA could have reopened

10 proceedings and stayed his removal while he applied for a

11 waiver of inadmissibility with the U.S. Citizenship and

12 Immigration Services (“USCIS”). In Sheng Gao Ni v. BIA, we

13 concluded that the BIA fails to provide an adequate basis for

14 denying a timely motion to reopen by simply observing that,

15 under agency regulations, the IJ lacks jurisdiction to

16 adjudicate an adjustment application without recognizing that

17 a movant may seek to lift a removal order to have sufficient

18 time to pursue an adjustment application before USCIS. 520

(2d Cir. 2008). But here, the BIA denied

20 the motion to reopen because it was untimely and number

21 barred. It did not misperceive its own authority, but simply 4 1 noted that Daikoku could pursue a waiver of inadmissibility

2 with USCIS despite his outstanding removal order and that he

3 could apply for a stay of removal with the Department of

4 Homeland Security.

5 For the foregoing reasons, the petition for review is

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

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

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

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

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

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

12 34.1(b).

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

5