20-471 (L) Khan v. Garland BIA Ruehle, IJ A206 652 257 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of July, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSON, Chief Judge, JON O. NEWMAN, GERARD E. LYNCH, Circuit Judges. _____________________________________

ESFAK AHMED KHAN, Petitioner,

v. 20-471 (L), 20-2576 (Con) NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Anne E. Doebler, Esq., Buffalo, NY. FOR RESPONDENT: Brian Boyton, Acting Assistant Attorney General; Zoe J. Heller, Senior Litigation Counsel; Rodolfo D. Saenz, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

Board of Immigration Appeals (“BIA”) decisions, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petitions for review

are DISMISSED.

Petitioner Esfak Ahmed Khan, a native and citizen of

Bangladesh, seeks review of a January 9, 2020, decision of

the BIA denying Khan’s motion to remand and affirming a

February 28, 2018, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”), In re Esfak Ahmed

Khan, No. A206 652 257 (B.I.A. Jan. 9, 2020), aff’g No. A206

652 257 (Immig. Ct. Buffalo Feb. 28, 2018), and a July 30,

2020, decision of the BIA denying Khan’s subsequent motion to

reopen, No. A206 652 257 (B.I.A. July 30, 2020). We assume

the parties’ familiarity with the underlying facts and

procedural history.

We review findings of fact for substantial evidence and

questions of law de novo. See

(b)(4)(B); 2 Yanqin Weng v. Holder,

(2d Cir. 2009).

We dismiss the lead petition because Khan did not raise

any challenge to the BIA’s January 2020 decision in his brief

and failed to exhaust any argument as to asylum, withholding

of removal, and protection under the CAT before the BIA. See

Karaj v. Gonzales,

(2d Cir. 2006) (holding

that petitioner’s failure to exhaust arguments before the BIA

deprives this court of jurisdiction to review); see also

Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7 (2d

Cir. 2005) (finding “single conclusory sentence” constitutes

waiver); Norton v. Sam’s Club,

(2d Cir.

1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on

appeal.”).

We likewise dismiss the consolidated petition. We

review the denial of a motion to reopen for abuse of

discretion, see Ke Zhen Zhao v. U.S. Dep’t of Justice,

, 89–90, 93 (2d Cir. 2001), and we are “mindful that

motions to reopen ‘are disfavored,’” Ali v. Gonzales,

(2d Cir. 2006) (quoting INS v. Doherty,

, 322–23 (1992)).

3 We lack jurisdiction to consider the BIA’s denial of

Khan’s motion to reopen. The agency’s decision whether to

exercise its sua sponte authority under

(a)

is “entirely discretionary” and not subject to judicial

review. Ali,

. The limited exception, under

which we will remand if the BIA “misperceived the legal

background and thought, incorrectly, that a reopening would

necessarily fail,” Mahmood v. Holder,

(2d

Cir. 2009), does not apply here.

The BIA also denied reopening on the basis that,

ultimately, it would not grant Khan adjustment of status as

a matter of discretion. We again lack jurisdiction to review

this determination. The agency relied on INS v. Abudu,

(1988), which held, in the similar context of motions

to reopen, that in certain discretionary matters the BIA may

“leap ahead . . . over the two threshold concerns (prima

facie case and new evidence/reasonable explanation), and

simply determine that even if they were met, the movant would

not be entitled to the discretionary grant of relief.”

; see also Li Yong Cao v. U.S. Dep’t of Justice,

(2d Cir. 2005) (“A motion to remand that

4 relies on newly available evidence is held to the substantive

requirements of a motion to reopen.”). “Abudu stands for the

proposition that . . . the BIA may deny a motion to reopen if

it determines that it would ultimately exercise discretion to

deny that relief,” and “[w]here a denial is based on the BIA’s

‘merits-deciding’ analysis of the alien’s entitlement to the

ultimate relief sought, the denial may properly be said to be

a decision ‘under’ the statutory provision providing that

ultimate relief.” Mariuta v. Gonzales,

, 364–65

(2d Cir. 2005). Thus, where the BIA denies a motion to remand

to seek adjustment of status because it would ultimately deny

the relief as a matter of discretion, the jurisdictional

limitation in

(a)(2)(B) attaches because the

BIA is making a discretionary determination as to whether an

individual receives adjustment of status under

. Mariuta, 411 F.3d at 365–66. We lack jurisdiction

to review such a determination absent a constitutional claim

or question of law.

(a)(2)(D).

We find Khan’s arguments insufficient to invoke our

jurisdiction under

(a)(2)(D) because they

amount to disputes with the BIA’s rationale for its

5 discretionary choices and the weight afforded certain

factors, which we lack jurisdiction to review. Xiao Ji Chen

v. U.S. Dep’t of Justice,

(2d Cir. 2006).

Khan’s constitutional claim that his due process rights were

violated similarly fails to invoke our jurisdiction because

he has not shown he was deprived of a full and fair

opportunity to present his claim. See Li Hua Lin v. U.S.

Dep’t of Justice,

(2d Cir. 2006) (stating

that due process requires showing applicant was “denied

. . . a full and fair opportunity to present [his] claims.”);

cf. Yuen Jin v. Mukasey,

, 156–57 (2d Cir. 2008)

(concluding that noncitizens do not have a “liberty or

property interest” in discretionary relief).

For the foregoing reasons, the petitions for review are

DISMISSED. All pending motions and applications are DENIED

and stays VACATED.

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

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