20-73 Wilson v. Garland BIA A029 001 881

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of March, two thousand twenty-two.

PRESENT: RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. *

_____________________________________

CLAUDETTE PATRICIA WILSON, Petitioner,

v. 20-73 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Samuel Iroegbu, Esq., Albany, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Margaret Kuehne Taylor, Senior Litigation Counsel; Craig W. Kuhn,

* Judge Robert A. Katzmann, who was a member of the original panel in this case, died before the panel issued a decision. Pursuant to Second Circuit Internal Operating Procedure E(b), the matter is being decided by the two remaining members of the panel. Trial Attorney, Office of Immigration Litigation, 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 in part and DISMISSED in part.

Petitioner Claudette Patricia Wilson, a native and

citizen of Jamaica, seeks review of a December 11, 2019

decision of the BIA denying her motion to reopen. In re

Claudette Patricia Wilson, No. A029 001 881 (B.I.A. Dec. 11,

2019). We assume the parties’ familiarity with the

underlying facts and procedural history.

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

abuse of discretion. See Jian Hui Shao v. Mukasey,

(2d Cir. 2008). It is clear that Wilson’s 2019

motion to reopen was untimely and number-barred because it

was her second motion and was filed 23 years after she was

ordered to be deported, in 1996. See 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i);

(c)(2). The

2 petition is denied to the extent it challenges the BIA’s

denial on this basis.

Because Wilson’s motion was untimely and number-barred,

“h[er] motion to reopen could only be considered upon exercise

of the [BIA’s] sua sponte authority.” Mahmood v. Holder,

(2d Cir. 2009). We lack jurisdiction to review

the agency’s “entirely discretionary” decision declining to

reopen proceedings sua sponte. Ali v. Gonzales,

(2d Cir. 2006). We will remand, however, “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.”

Mahmood,

. Because Wilson has not

demonstrated that the BIA misperceived the law, there is no

occasion to remand here.

Wilson argues that, under Pereira v. Sessions,

(2018), her order to show cause was insufficient to

vest jurisdiction with the immigration judge or to stop time

for purposes of establishing the period of physical presence

required for her to be eligible for cancellation of removal.

In Pereira, the Supreme Court held that the Immigration and 3 Nationality Act (“INA”) unambiguously requires that a notice

to appear include a hearing time and place for it to trigger

the “stop-time rule.”

at 2113–20. The “stop-time rule”

cuts off a noncitizen’s accrual of physical presence or

residence for the purposes of qualifying for cancellation of

removal. See 8 U.S.C. § 1229b(a), (b), (d)(1).

Upon review, we conclude that the BIA did not err in

finding Pereira inapplicable to Wilson’s proceedings. Wilson

was in deportation proceedings (commenced by the filing of an

order to show cause) and not in removal proceedings (commenced

by service of a notice to appear). The INA did not require

that an order to show cause designate a hearing time and

place; rather, it permitted the time and place to be

designated in a hearing notice served after service of the

order to show cause. This is what occurred in Wilson’s case.

See 8 U.S.C. § 1252b(a)(1) (1994) (listing required contents

of orders to show cause), (2)(A) (providing that time and

place of proceedings may be provided “in the order to show

cause or otherwise” in written notice (emphasis added)); see

also Pereira,

n.9 (recognizing that orders

to show cause were not required to “include time-and-place 4 information”). Accordingly, the BIA did not misperceive the

law in concluding that Pereira was not applicable.

Further, the BIA acted in line with its precedent and

regulations insofar as it decided that Wilson’s asserted

eligibility to adjust to lawful permanent status more than

two decades after issuance of her deportation order did not

constitute exceptional circumstances warranting reopening sua

sponte. See Matter of Yauri,

(B.I.A.

2009) (emphasizing “that untimely motions to reopen to pursue

an application for adjustment of status . . . will ordinarily

be denied”); In re J-J-,

(B.I.A.

1997) (“The power to reopen on our own motion is not meant to

be used as a general cure for filing defects or to otherwise

circumvent the regulations, where enforcing them might result

in hardship.”).

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. All pending motions

and applications are DENIED and stays VACATED.

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

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