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

Ghani v. Holder

BIA

IJ, Nelson

A070 651 195

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.

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

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

11 ORDERED, ADJUDGED, AND DECREED, that the petition for review

12 is DENIED. 

13 Petitioner Ataul Ghani, a native and citizen of

14 Bangladesh, seeks review of an August 26, 2003, order of the

15 BIA, affirming the June 24, 2002, decision of Immigration

16 Judge (“IJ”) Barbara A. Nelson, which denied his motion to

17 reopen. In re Ataul Ghani, No. A070 651 195 (B.I.A. Aug.

18 26, 2003), aff’g No. A070 651 195 (Immig. Ct. N.Y. City June

19 24, 2002). We assume the parties’ familiarity with the

20 underlying facts and procedural history in this case.

21 When a movant is ordered deported in absentia, a

22 motion to reopen is governed by different rules depending on

23 whether the movant seeks to rescind the order or present new

24 evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d

25 Cir. 2006); see also In re M-S-, 22 I. & N. Dec. 349, 353-55

26 (B.I.A. 1998) (en banc). Ghani has filed a single motion
3

1 that seeks both rescission of an in absentia deportation

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

10 agency’s denial of a motion to rescind an in absentia

11 deportation order under the same abuse of discretion

12 standard applicable to motions to reopen. See Alrefae, 471

13 F.3d at 357; see also Ali v. Gonzales, 448 F.3d 515, 517 (2d

14 Cir. 2006). However, when the agency considers relevant

15 evidence of country conditions in evaluating a motion to

16 reopen, we review the agency’s factual findings under the

17 substantial evidence standard. See Jian Hui Shao v.

18 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

19 I. Motion to Rescind

20 The agency did not abuse its discretion in denying as

21 untimely Ghani’s motion to rescind the IJ’s in absentia

22 order. When a movant asserts that failure to appear at the
4

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

10 and number-barred. An alien is limited to a single motion

11 to reopen filed no later than 90 days after the date on

12 which the final administrative decision was rendered. See

13 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). There is no time

14 or numerical limit for filing a motion to reopen if it is

15 “based on changed circumstances arising in the country of

16 nationality or in the country to which deportation has been

17 ordered, if such evidence is material and was not available

18 and could not have been discovered or presented at the

19 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii) Ghani’s

20 motion to reopen alleges a fear of persecution very similar

21 to that made in his original asylum application. Although

22 the political leaders in Bangladesh had recently changed
5

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

10 status pursuant to his wife’s labor certification. However, 

11 eligibility to adjust status is not an exception to the time

12 and numerical limitations for filing a motion to reopen. 

13 The BIA therefore did not abuse its discretion in denying

14 Ghani’s motion to reopen to apply for adjustment of status

15 as untimely. See 8 C.F.R. § 1003.23(b)(1), (4). 

16 Furthermore, to the extent Ghani challenges the BIA’s

17 refusal to reopen his case sua sponte, we lack jurisdiction

18 to review a decision of the BIA not to reopen a case sua

19 sponte under 8 C.F.R. § 1003.2(a), because such a decision

20 is “entirely discretionary.” Ali, 448 F.3d at 518.

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of
6

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