Pursuant to Federal Rule of Appellate Procedure * 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General John Ashcroft as respondent in this case. 03 -40494-ag Ghaniv. Holder BIA IJ, Nelson A070 651 195 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULI N G S 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 27 day of September, two thousand ten. th 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 DENNY CHIN, 11 Circuit Judges . 12

_________________________________________ 13 14 ATAUL GHANI, 15 Petitioner , 16 17 v. 03-40494-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, * 21 Respondent . 22

_________________________________________ 23 24 FOR PETITIONER: Salim Sheikh, New York, New York.2 1 FOR RESPONDENT: Preet Bharara, United States 2 Attorney for the Southern District 3 of New York; Sue Chen, Special 4 Assistant United States Attorney; 5 Ross E. Morrison, Assistant United 6 States Attorney, Of Counsel, New 7 York, New York. 8 9 UPON DUE CONSIDERATION of this petition for review of a 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 2 is DENIED. 1 3 Petitioner Ataul Ghani, a native and citizen of 1 4 Bangladesh, seeks review of an August 26, 2003, order of the 1 5 BIA, affirming the June 24, 2002, decision of Immigration 1 6 Judge (“IJ”) Barbara A. Nelson, which denied his motion to 1 7 reopen. In re Ataul Ghani , No. A070 651 195 (B.I.A. Aug. 1 8 26, 2003), aff’g No. A070 651 195 (Immig. Ct. N.Y. City June 1 9 24, 2002). We assume the parties’ familiarity with the 2 0 underlying facts and procedural history in this case. 2 1 When a movant is ordered deported in absentia, a 2 2 motion to reopen is governed by different rules depending on 2 3 whether the movant seeks to rescind the order or present new 2 4 evidence. See Song Jin Wu v. INS , 436 F.3d 157, 163 (2d 2 5 Cir. 2006); see also In re M-S- , 22 I. & N. Dec. 349, 353-55 2 6 (B.I.A. 1998) (en banc). Ghani has filed a single motion3 1 that seeks both rescission of an in absentiadeportation 2 order and reopening of deportation proceedings based on new 3 evidence. We treat such a motion as comprising distinct 4 motions to rescind and to reopen. See Alrefae v. Chertoff , 5 471 F.3d 353, 357 (2d Cir. 2006); see also Maghradze v. 6 Gonzales , 462 F.3d 150, 152 n.1 (2d Cir. 2006). Under the 7 circumstances of this case, we consider both the IJ’s and 8 the BIA’s opinions “for the sake of completeness.” Zaman v. 9 Mukasey , 514 F.3d 233, 237 (2d Cir. 2008). We review the 1 0 agency’s denial of a motion to rescind an in absentia 1 1 deportation order under the same abuse of discretion 1 2 standard applicable to motions to reopen. See Alrefae , 471 1 3 F.3d at 357; see also Ali v. Gonzales , 448 F.3d 515, 517 (2d 1 4 Cir. 2006). However, when the agency considers relevant 1 5 evidence of country conditions in evaluating a motion to 1 6 reopen, we review the agency’s factual findings under the 1 7 substantial evidence standard. See Jian Hui Shao v. 18 Mukasey , 546 F.3d 138, 169 (2d Cir. 2008). 19 I. Motion to Rescind 2 0 The agency did not abuse its discretion in denying as 2 1 untimely Ghani’s motion to rescind the IJ’s in absentia 2 2 order. When a movant asserts that failure to appear at the4 1 deportation hearing was caused by exceptional circumstances, 2 as Ghani did in his motion, the motion seeking rescission 3 must be filed within 180 days of that order. See 8 C.F.R. § 4 1003.23(b)(4)(iii)(A)(1). Ghani filed his motion to rescind 5 over four years after the IJ entered an in absentia 6 deportation order. The agency did not abuse its discretion 7 in denying his motion to rescind as untimely. See id. 8 II. Motion to Reopen 9 The agency denied Ghani’s motion to reopen as untimely 1 0 and number-barred. An alien is limited to a single motion 1 1 to reopen filed no later than 90 days after the date on 1 2 which the final administrative decision was rendered. See 1 3 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). There is no time 1 4 or numerical limit for filing a motion to reopen if it is 1 5 “based on changed circumstances arising in the country of 1 6 nationality or in the country to which deportation has been 1 7 ordered, if such evidence is material and was not available 1 8 and could not have been discovered or presented at the 1 9 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii) Ghani’s 2 0 motion to reopen alleges a fear of persecution very similar 2 1 to that made in his original asylum application. Although 2 2 the political leaders in Bangladesh had recently changed5 1 from the Awami League to the Bangladesh Nationalist Party, 2 Ghani claimed a continued fear of both parties. Thus, 3 substantial evidence supports the agency’s finding that 4 Ghani failed to establish material changed country 5 conditions in Bangladesh excusing the untimely and number6 barred filing of his motion to reopen. See Jian Hui Shao , 7 546 F.3d at 169. 8 Ghani also argues that the agency erred by declining to 9 reopen his case to allow him to apply for adjustment of 1 0 status pursuant to his wife’s labor certification. However, 1 1 eligibility to adjust status is not an exception to the time 1 2 and numerical limitations for filing a motion to reopen. 1 3 The BIA therefore did not abuse its discretion in denying 1 4 Ghani’s motion to reopen to apply for adjustment of status 1 5 as untimely. See 8 C.F.R. § 1003.23(b)(1), (4). 1 6 Furthermore, to the extent Ghani challenges the BIA’s 1 7 refusal to reopen his case sua sponte, we lack jurisdiction 1 8 to review a decision of the BIA not to reopen a case sua 19 sponteunder 8 C.F.R. § 1003.2(a), because such a decision 2 0 is “entirely discretionary.” Ali , 448 F.3d at 518.

For the foregoing reasons, the petition for review is 21 2 2 DENIED. As we have completed our review, any stay of6 1 removal that the Court previously granted in this petition 2 is VACATED, and any pending motion for a stay of removal in 3 this petition is DISMISSED as moot. Any pending request for 4 oral argument in this petition is DENIED in accordance with 5 Federal Rule of Appellate Procedure 34(a)(2), and Second 6 Circuit Local Rule 34.1(b). 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10