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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **1 st**  **day of September, two thousand sixteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **REENA RAGGI,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **PARTHA SAHA,** 13 Petitioner **,** 14 15 **v. 15-1939** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Naresh M. Gehi, Gehi and 23 Associates,Forest Hills, New York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; John W. 27 Blakeley, Assistant Director; 28 Patricia E. Bruckner, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 D.C. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Partha Saha, a native and citizen of Bangladesh, 5 seeks review of a June 9, 2015, decision of the BIA affirming 6 an Immigration Judge’s (“IJ”) August 18, 2014, denial of his 7 motion to reopen. In re Partha Saha, No. A045 050 928 (B.I.A. 8 June 9, 2015), aff’g No. A045 050 928 (I mmigr. Ct. Batavia Aug. 9 18, 2014). We assume the parties’ familiarity with the 10 underlying facts and procedural history in this case. 11 Under the circumstances of this case, we have reviewed the 12 IJ’s decision as supplemented by the BIA. See Yan Chen v. 13

Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review the 14 denial of a motion to reopen for abuse of discretion. Ali v. 15

Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). We lack 16 jurisdiction, however, to review a final order of removal, 17 including an order denying a motion to reopen, against an alien, 18 such as Saha, who is removable by reason of having committed 19 an aggravated felony or a controlled substance offense; we 20 retain jurisdiction to consider constitutional claims and 21 questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D); Durant 22

v. U.S. INS , 393 F.3d 113, 115 (2d Cir. 2005). 233 The petition is denied because the agency did not abuse its 1 discretion by denying Saha’s motion to reopen as untimely and 2 Saha has not identified any constitutional decision. Saha’s 3 2014 motion to reopen was untimely because it was filed more 4 than 90 days after the IJ’s 2010 decision, which was the final 5 administrative order. 8 U.S.C. § 1229a(c)(7)(C)(i). There 6 are exceptions to this time limit if an alien can demonstrate 7 ineffective assistance of counsel and due diligence in seeking 8 to reopen on that basis, see Iavorski v. U.S. INS , 232 F.3d 124, 9 135 (2d Cir. 2000), or if an alien can show that conditions in 10 his country of removal have materially changed so as to render 11 him prima facie eligible for asylum, see 8 U.S.C. 12 § 1229a(c)(7)(C)(ii). 13 Although Saha raised both of these exceptions before the 14 agency, he raises only changed country conditions in his brief 15 to this Court. However, his argument is brief and points to 16 no evidence that the agency overlooked or misconstrued. 17 Accordingly, he has not identified any reviewable challenge to 18

the BIA’s country conditions determination, but instead “merely 19 quarrels over the correctness of the factual findings . . . .” 20 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d 21 Cir. 2006). Additionally, Saha’s argument that his son will 22 suffer harm if he (Saha) is removed is not properly before us 234 because it was not raised before the BIA. See Lin Zhong v. U.S. 1 Dep’t of Justice , 480 F.3d 104, 122 (2d Cir. 2007). 2 Finally, as the Government argues, we lack jurisdiction 3 over any exercise of prosecutorial discretion. 8 U.S.C. 4 § 1252(a), (g) (“[N]o court shall have jurisdiction to hear any 5 cause or claim . . . arising from the decision or action by the 6 Attorney General to commence proceedings, adjudicate cases, or 7 execute removal orders against any alien under this chapter.”). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our rev iew, any stay of removal 10 that the Court previously granted in this petition is VACATED, 11 and any pending motion for a stay of removal in this petition 12 is DISMISSED as moot. Any pending request for oral argument 13 in this petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 15 34.1(b). 16

FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18