10-958-ag Lucero v. Holder BIA A077 543 536 

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

# SUMMARY ORDER

**RULINGS BY SU MMARY 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.** 

### At a stated term of the United States Court of Appeals 1 

### for the Second Circuit, held at the Daniel Patrick Moynihan 2 

### United States Courthouse, 500 Pearl Street, in the City of 3 

### New York, on the 22**nd**

### day of March, two thousand twelve. 4 5 

### PRESENT: 6 

### ROSEMARY S. POOLER, 7 

### DEBRA ANN LIVINGSTON, 8 

### DENNY CHIN, 9 

### Circuit Judges**.** 10



### _________________________________________ 11 12 

### MARIANO LUCERO, 13 

### Petitioner**,** 14 15 

### v. 10-958-ag 16 

### NAC 17 

### ERIC H. HOLDER, JR., UNITED STATES 18 

### ATTORNEY GENERAL, 19 

### Respondent **.** 20



### _________________________________________ 21 22 

### FOR PETITIONER: Samuel Iroegbu, Albany, New York. 23 24 

### FOR RESPONDENT: Tony West, Assistant Attorney 25 

### General; Carl H. McIntyre, Jr., 26 

### Assistant Director; Marion E. 27 

### Guyton, Trial Attorney, Office of 28 

### Immigration Litigation, United 29 

### States Department of Justice, 30 

### Washington, D.C. 31

### 2 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 3 

### is DENIED. 4 

### Petitioner Mariano Lucero, a native and citizen of 5 

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

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

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

### familiarity with the underlying facts and procedural history 9 

### of the case. 10 

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

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

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

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

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

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

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

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

### Moreover, the BIA reasonably concluded that Lucero’s 19 

### purported eligibility to adjust status did not excuse the 20 

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

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

### 3 “that untimely motions to reopen to pursue an application 1 

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

### statutory or regulatory exceptions to the time limits for 3 

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

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

### For the foregoing reasons, the petition for review is 6 

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

### removal that the Court previously granted in this petition 8 

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

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

### oral argument in this petition is DENIED in accordance with 11 

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

### Circuit Local Rule 34(b). 13


### FOR THE COURT: 14 

### Catherine O’Hagan Wolfe, Clerk 15 16 17