10-925-ag

Haxhija v. Holder

BIA

A073 583 096

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 15th day of May, two thousand twelve.

PRESENT:

ROSEMARY S. POOLER,

PETER W. HALL,

GERARD E. LYNCH,

 Circuit Judges. 

_______________________________________

SHAQE HAXHIJA

Petitioner, 

 v. 10-925-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Joshua E. Bardavid, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Keith I. McManus, Senior

Litigation Counsel; Matt A. Crapo,
2

Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED.

Petitioner Shaqe Haxhija, a native of the former

Yugoslavia and citizen of Kosovo, seeks review of a February

19, 2010, order of the BIA denying his motion to reopen. In

re Shaqe Haxhija, No. A073 583 096 (B.I.A. Feb. 19, 2010). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

We lack jurisdiction to consider Haxhija’s challenge to

the BIA’s denial of reopening. Haxhija argues only that the

BIA abused its discretion in declining to exercise its sua

sponte authority to reopen his proceedings. The BIA’s

determination as to whether it will exercise its sua sponte

authority is “entirely discretionary and therefore beyond

our review.” Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

2006). Although remand is appropriate “where the Agency may

have declined to exercise its sua sponte authority because

it misperceived the legal background and thought,
3

incorrectly, that a reopening would necessarily fail,”

Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there

is no indication here that the BIA misperceived the law in

declining to reopen proceedings sua sponte. There is no

suggestion that the BIA denied Haxhija’s motion based on his

failure to demonstrate prima facie eligibility for

adjustment of status; rather, the BIA determined that

Haxhija had not shown an “exceptional situation” that would

warrant reopening his proceedings sua sponte and therefore

simply declined to exercise its authority to do so. 

For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, the pending

motion for a stay of removal in this petition is DISMISSED

as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk