10-958-ag

Lucero v. Holder

BIA

A077 543 536

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

New York, on the 22nd 4 day of March, two thousand twelve.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges. 

11 _________________________________________

12

13 MARIANO LUCERO,

14 Petitioner, 

15

16 v. 10-958-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Samuel Iroegbu, Albany, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Carl H. McIntyre, Jr.,

27 Assistant Director; Marion E.

28 Guyton, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, 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

4 is DENIED.

5 Petitioner Mariano Lucero, a native and citizen of

6 Mexico, seeks review of a February 19, 2010, decision of the

7 BIA denying his motion to reopen. In re Mariano Lucero, No.

8 A077 543 536 (B.I.A. Feb. 19, 2010). We assume the parties’

9 familiarity with the underlying facts and procedural history

10 of the case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

13 Cir. 2005) (per curiam). The BIA did not abuse its

14 discretion in denying Lucero’s motion to reopen as untimely.

15 As the BIA noted, Lucero’s final order of removal was

16 entered in 2007, but Lucero did not file his motion to

17 reopen until 2009, well beyond the 90-day deadline. See

18 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

19 Moreover, the BIA reasonably concluded that Lucero’s

20 purported eligibility to adjust status did not excuse the

21 time limitation for filing his motion to reopen. See Matter

22 of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing
3

1 “that untimely motions to reopen to pursue an application

2 for adjustment of status . . . do not fall within any of the

3 statutory or regulatory exceptions to the time limits for

4 motions to reopen before the Board”) (citing 8 U.S.C. 

5 § 1229a(c)(7)(C)(ii)-(iv) and 8 C.F.R. § 1003.2(c)(3)).

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17