15-1939 

Saha v. Lynch 

BIA 

Reid, IJ 

A045 050 928 

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 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

1st 4 day of September, two thousand sixteen. 

5 

6 PRESENT: 

7 PIERRE N. LEVAL,

8 REENA RAGGI, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 PARTHA SAHA, 

14 Petitioner, 

15 

16 v. 15-1939 

17 NAC 

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Naresh M. Gehi, Gehi and 

24 Associates,Forest Hills, New York. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; John W. 

28 Blakeley, Assistant Director; 

29 Patricia E. Bruckner, Trial 

30 Attorney, Office of Immigration 

31 Litigation, United States 

32 Department of Justice, Washington, 

33 D.C. 
2

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 is 

4 DENIED. 

5 Petitioner Partha Saha, a native and citizen of Bangladesh, 

6 seeks review of a June 9, 2015, decision of the BIA affirming 

7 an Immigration Judge’s (“IJ”) August 18, 2014, denial of his 

8 motion to reopen. In re Partha Saha, No. A045 050 928 (B.I.A. 

9 June 9, 2015), aff’g No. A045 050 928 (Immigr. Ct. Batavia Aug. 

10 18, 2014). We assume the parties’ familiarity with the 

11 underlying facts and procedural history in this case. 

12 Under the circumstances of this case, we have reviewed the 

13 IJ’s decision as supplemented by the BIA. See Yan Chen v. 

14 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the 

15 denial of a motion to reopen for abuse of discretion. Ali v. 

16 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We lack 

17 jurisdiction, however, to review a final order of removal, 

18 including an order denying a motion to reopen, against an alien, 

19 such as Saha, who is removable by reason of having committed 

20 an aggravated felony or a controlled substance offense; we 

21 retain jurisdiction to consider constitutional claims and 

22 questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Durant 

23 v. U.S. INS, 393 F.3d 113, 115 (2d Cir. 2005). 
3

1 The petition is denied because the agency did not abuse its 

2 discretion by denying Saha’s motion to reopen as untimely and 

3 Saha has not identified any constitutional decision. Saha’s 

4 2014 motion to reopen was untimely because it was filed more 

5 than 90 days after the IJ’s 2010 decision, which was the final 

6 administrative order. 8 U.S.C. § 1229a(c)(7)(C)(i). There 

7 are exceptions to this time limit if an alien can demonstrate 

8 ineffective assistance of counsel and due diligence in seeking 

9 to reopen on that basis, see Iavorski v. U.S. INS, 232 F.3d 124, 

10 135 (2d Cir. 2000), or if an alien can show that conditions in 

11 his country of removal have materially changed so as to render 

12 him prima facie eligible for asylum, see 8 U.S.C. 

13 § 1229a(c)(7)(C)(ii). 

14 Although Saha raised both of these exceptions before the 

15 agency, he raises only changed country conditions in his brief 

16 to this Court. However, his argument is brief and points to 

17 no evidence that the agency overlooked or misconstrued. 

18 Accordingly, he has not identified any reviewable challenge to 

19 the BIA’s country conditions determination, but instead “merely 

20 quarrels over the correctness of the factual findings . . . .” 

21 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d 

22 Cir. 2006). Additionally, Saha’s argument that his son will 

23 suffer harm if he (Saha) is removed is not properly before us 
4

1 because it was not raised before the BIA. See Lin Zhong v. U.S. 

2 Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007). 

3 Finally, as the Government argues, we lack jurisdiction 

4 over any exercise of prosecutorial discretion. 8 U.S.C. 

5 § 1252(a), (g) (“[N]o court shall have jurisdiction to hear any 

6 cause or claim . . . arising from the decision or action by the 

7 Attorney General to commence proceedings, adjudicate cases, or 

8 execute removal orders against any alien under this chapter.”). 

9 For the foregoing reasons, the petition for review is 

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

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

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

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

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

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

16 34.1(b). 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk