12-2345 

Ragbir v. Lynch 

BIA 

A044 248 862 

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 TO 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 for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

4th day of March, two thousand sixteen. 

PRESENT: 

RALPH K. WINTER,

PETER W. HALL, 

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________ 

RAVIDATH LAWRENCE RAGBIR, 

 Petitioner, 

v. 12-2345 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Alina Das, Attorney; Kendal Nystedt, 

 Jessica Rofé, Legal Interns, 

 Washington Square Legal Services, 

 Inc., New York, New York. 
2

FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant 

Attorney General; Douglas E. 

Ginsburg, Assistant Director; Karen 

L. Melnik, Trial Attorney, Office of 

Immigration Litigation, 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 Ravidath Lawrence Ragbir, a native and citizen 

of Trinidad and Tobago, seeks review of a May 15, 2012, decision 

of the BIA, denying his motion to reconsider and reopen. In 

re Ravidath Lawrence Ragbir, No. A044 248 862 (B.I.A. May 15, 

2012). We assume the parties’ familiarity with the underlying 

facts and procedural history in this case. 

 We lack jurisdiction to review a final order of removal, 

including an order denying a motion to reconsider and reopen, 

against an alien, such as Ragbir, “who is removable by reason 

of having committed [an aggravated felony].” 8 U.S.C. 

§ 1252(a)(2)(C); see also Santos-Salazar v. U.S. Dep’t of 

Justice, 400 F.3d 99, 102 (2d Cir. 2005); Durant v. INS, 393 

F.3d 113, 115-16 (2d Cir. 2004). Although we retain 
3

jurisdiction to consider constitutional claims and questions 

of law, see 8 U.S.C. § 1252(a)(2)(D), Ragbir raises no 

colorable constitutional claims or questions of law in 

challenging the BIA’s denial of his motion as untimely, see 

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008). 

He did not argue before the BIA that the time period for filing 

his motion should be equitably tolled, and he was not eligible 

for an exception to the applicable time limitations based on 

his purported eligibility to adjust status. See 8 U.S.C. 

§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter of 

Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009). 

 Because Ragbir’s untimely filing “was not excused by any 

regulatory exception, his motion . . . could only be considered 

upon exercise of the Agency’s sua sponte authority.” Mahmood 

v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); see also 8 C.F.R. 

§ 1003.2(a). Although the agency’s exercise of its sua sponte 

authority “is entirely discretionary” and beyond the scope of 

this Court’s review, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 

2006), remand is appropriate “where the Agency may have declined 

to exercise its sua sponte authority because it misperceived 

the legal background and thought, incorrectly, that a reopening 
4

would necessarily fail,” Mahmood, 570 F.3d at 469. The BIA made 

no such error here. 

Motion to Reconsider 

 Ragbir’s conviction for one count of conspiracy to commit 

wire fraud and six counts of wire fraud in violation of 18 U.S.C. 

§ 371, 1343 & 2 rendered him removable for having been convicted 

of an aggravated felony as defined in 8 U.S.C. 

§ 1101(a)(43)(M)(i)—“an offense that . . . involves fraud or 

deceit in which the loss to the victim or victims exceeds 

$10,000.” He argues that the BIA failed to consider his 

argument that his conviction was not categorically a “fraud or 

deceit” aggravated felony in light of the Supreme Court’s 

intervening decision in Skilling v. United States, 561 U.S. 358 

(2010), which limited the broad language of § 1343 to 

criminalize only certain conduct. However, Ragbir’s 

conclusory assertion in his motion (clarified in his briefs 

here) was insufficient to apprise the BIA of his argument. In 

any event, the BIA reasonably construed his lengthy discussion 

of the jury instructions in his criminal proceedings as a 

challenge to his underlying conviction, which was not 
5

appropriately raised in removal proceedings. See Lanferman v. 

BIA, 576 F.3d 84, 88 (2d Cir. 2009). 

 Regardless, Ragbir’s argument is based on the premise, 

rejected by the Supreme Court, that a “fraud or deceit” 

aggravated felony requires that the underlying statute of 

conviction contain fraud as an element. See Kawashima v. 

Holder, 132 S. Ct. 1166, 1172 (2012). While pre-Skilling

convictions under 18 U.S.C. § 1343, including Ragbir’s, may have 

included conduct broader than that categorized as fraud, 

including schemes that merely failed to comport with 

“fundamental honesty, fair play and right dealing,” Skilling, 

561 U.S. at 418 (Scalia, J. concurring), such offenses 

nevertheless “involve[] . . . deceit” and thus categorically 

constitute crimes involving “fraud or deceit” under 8 U.S.C. 

§ 1101(a)(43)(M)(i). See Kawashima, 132 S. Ct. at 1172 

(defining deceit); see also Doe v. Att’y Gen., 659 F.3d 266, 

274-75 (3d Cir. 2011). 

 The BIA also did not misperceive the law in declining to 

remand for reconsideration of Ragbir’s removability in light 

of the Supreme Court’s intervening decision in Nijhawan v. 

Holder, 557 U.S. 29 (2009), which clarified that the agency 
6

should apply a circumstance-specific approach to analyze the 

loss amount for purposes 8 U.S.C. § 1101(a)(43)(M)(i). We 

adhere to our decision rejecting this argument in Ragbir’s 

previous petition for review. See Johnson v. Holder, 564 F.3d 

95, 99 (2d Cir. 2009) (“The law of the case doctrine commands 

that ‘when a court has [explicitly or implicitly] ruled on an 

issue, that decision should generally be adhered to by that 

court in subsequent stages in the same case.’” quoting United 

States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). 

 As we previously noted, remand for reconsideration in light 

of Nijhawan is not warranted given that the agency applied a 

circumstance-specific approach to the loss determination in 

Ragbir’s case. And, “[d]espite repeated adjournments, Ragbir 

failed to obtain [sentencing and related] transcripts or to 

introduce other evidence in opposition to the government’s loss 

calculations.” Ragbir v. Holder, 389 F. App’x 80, 85 (2d Cir. 

2010) (summary order). Furthermore, although Ragbir submitted 

in support of reconsideration and reopening evidence that the 

victim’s loss in his case might have been offset by two 

properties used to secure two of the six fraudulent loans for 

which he was convicted, that evidence is insufficient to support 
7

“his urged inference that the indicted loans were repaid nearly 

in full,” i.e., that the victim has recouped all but $10,000 

for the $426,048.03 in indicted loans. Id. at 84 n.5. 

 Accordingly, we find that the BIA did not misperceive the 

law in declining to reconsider its order of removal. See

Mahmood, 570 F.3d at 469; see also Ali, 448 F.3d at 517. 

Motion to Reopen 

 The BIA also did not misperceive the law in declining to 

reopen sua sponte. Contrary to Ragbir’s contention, the BIA 

did not fail to adhere to the standard in Matter of 

Velarde-Pacheco, 23 I & N Dec. 253 (BIA 2002). Ragbir did not 

satisfy the first requirement in Velarde-Pacheco (that he file 

a timely motion), and thus the BIA was not required to evaluate 

the remaining Velarde-Pacheco factors or consider Ragbir’s 

evidence of his purported eligibility to adjust status. See 

id. at 256. Moreover, there is no merit to Ragbir’s due process 

claim because a grant of adjustment of status is discretionary, 

and an alien has no constitutionally protected liberty or 

property interest in a grant of discretionary relief. See Yuen 

Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008); see also 

Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006). 
8

 Accordingly, because the BIA did not misperceive the law 

in declining to reconsider or reopen Ragbir’s removal 

proceedings, remand is not warranted, see Mahmood, 570 F.3d at 

469; see also Ali, 448 F.3d at 517, and we are without 

jurisdiction over his petition, see 8 U.S.C. § 1252(a)(2)(C). 

 For the foregoing reasons, the petition for review is 

DISMISSED. As we have completed our review, Ragbir’s motion 

for leave for law students to argue is DENIED. 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk