19-4087 Mbagoyisahaha v. Garland BIA A095 967 493

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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 21st day of December, two thousand 4 twenty-one. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 WILLIAM J. NARDINI, 10 Circuit Judges. 11 _____________________________________ 12 13 CRISTIAN MBAGOYISAHAHA, 14 Petitioner, 15 16 v. 19-4087 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 1 FOR PETITIONER: Paul B. Grotas, Esq., New York, NY. 2 3 FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant 4 Attorney General; Keith I. McManus, 5 Assistant Director; Nelle M. Seymour, Trial 6 Attorney, Office of Immigration Litigation, 7 United States Department of Justice, 8 Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a Board of

10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

11 DECREED that the petition for review is DISMISSED.

12 Petitioner Cristian Mbagoyisahaha, a native and citizen of Angola, seeks

13 review of a November 12, 2019 decision of the BIA denying his third motion to

14 reopen. In re Cristian Mbagoyisahaha, No. A 095 967 493 (B.I.A. Nov. 12, 2019).

15 We assume the parties’ familiarity with the underlying facts and procedural

16 history.

17 We dismiss the petition for review because we lack jurisdiction to consider

18 it. All agree that Mbagoyisahaha’s 2019 motion to reopen – his third such motion,

19 filed more than 15 years after his 2004 removal order – was untimely and number

20 barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). Mbagoyisahaha requested

21 reopening to pursue adjustment of status, which does not implicate any exceptions

22 to the time and number limitations. Id. § 1229a(c)(7)(C)(ii)–(iv) (listing 2 1 exceptions);

(c)(3) (same); see Matter of Yauri,

,

2 105 (B.I.A. 2009) (“emphasiz[ing] that untimely motions to reopen to pursue an

3 application for adjustment of status . . . do not fall within any of the statutory or

4 regulatory exceptions to the time limits for motions to reopen before the Board

5 and will ordinarily be denied”).

6 Thus, Mbagoyisahaha’s motion necessarily relied on the BIA’s authority to

7 reopen his proceedings sua sponte. See Mahmood v. Holder,

(2d

8 Cir. 2009); see also

(a). With one exception, however, we lack

9 jurisdiction to review the BIA’s “entirely discretionary” decision not to reopen sua

10 sponte. Ali v. Gonzales,

(2d Cir. 2006). Mbagoyisahaha attempts

11 to fit this case into the exception, arguing that “the [BIA] may have declined to

12 exercise its sua sponte authority because it misperceived the legal background and

13 thought, incorrectly, that a reopening would necessarily fail.” Mbagoyisahaha’s

14 Br. 12 (quoting Mahmood,

). But the BIA did not address

15 Mbagoyisahaha’s eligibility to adjust or consider whether such a claim would fail;

16 it simply found he had not shown an exceptional situation warranting reopening.

17 Mbagoyisahaha raises several additional arguments in favor of our

18 reviewing the BIA’s denial of his reconsideration motion. He observes that the

3 1 BIA failed to determine his prima facie eligibility for adjustment of status and did

2 not address each of his arguments that exceptional circumstances warrant

3 reopening, making it “unclear . . . whether the Board correctly perceived the legal

4 background” of the motion and relevant law to apply. Mbagoyisahaha’s Br. 12.

5 But the BIA was not required to address the underlying merits of Mbagoyisahaha’s

6 motion because it was untimely and number barred. Nor was the BIA required

7 to parse each of his arguments concerning the existence of exceptional

8 circumstances warranting reopening. It was enough that the BIA found a lack of

9 exceptional circumstances. That alone is sufficient to deprive us of jurisdiction.

10 See Ali,

.

11 Mbagoyisahaha also argues that the BIA erred by stating that he was

12 seeking to apply for adjustment of status before U.S. Citizenship and Immigration

13 Services rather than before an immigration judge. But even if we assume that to

14 have been an error, the BIA made that statement in the context of finding no

15 exception to the time and number limitations, not as an independent legal basis

16 for declining to reopen sua sponte. Accordingly, the BIA did not “misperceive[]

17 the legal background” or erroneously determine that adjustment would

18 “necessarily” fail. Mahmood,

.

4 1 For the foregoing reasons, the petition for review is DISMISSED. All

2 pending motions and applications are DENIED and stays VACATED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court

5