10-1963-ag Persaud v. Holder BIA A073 540 452 

### 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.**  **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 30 th** **day of September, two thousand eleven.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**______________________________________** 11 12 **NAITRAM PERSAUD,** 13 Petitioner**,** 14 **10-1963-ag** 15 **v. NAC** 16 17 **ERIC H. HOLDER, JR.,** 18 Respondent**.** 19

**______________________________________** 20 21 **FOR PETITIONER: Naitram Persaud,** pro se**.** 22 23 **FOR RESPONDENT: Tony West, Assistant Attorney** 24 **General; Leslie McKay, Assistant** 25 **Director; Kelly J. Walls, Trial** 26 **Attorney, Office of Immigration** 27 **Litigation, Civil Division, United** 28 **States Department of Justice,** 29 **Washington, D.C.** 30 31 322 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 Naitram Persaud, a native and citizen of Guyana, seeks 5 review of a May 12, 2010, decision of the BIA denying his 6 motion to reopen his deportation proceedings. In re 7 Persaud , No. A073 540 452 (B.I.A. May 12, 2010). We assume 8 the parties’ familiarity with the underlying facts and 9 procedural history of the case. 10 As an initial matter, we lack jurisdiction to review 11 Persaud’s arguments with respect to the underlying denial of 12 asylum, because our review is limited to the BIA’s denial of 13 his motion to reopen, as that is the only order from which a 14 timely petition for review was filed. See Ke Zhen Zhao v. 15 U.S. Dep’t of Justice , 265 F.3d 83, 89-90 (2d Cir. 2001). 16 We review the BIA’s denial of a motion to reopen for abuse 17 of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 (2d 18 Cir. 2006). The BIA did not abuse its discretion in denying 19 Persaud’s motion to reopen as untimely. See id . A motion 20 to reopen must generally be filed no later than 90 days 21 after the date on which the final administrative decision 22 was rendered in the proceedings sought to be reopened. See 233 8 U.S.C. § 1229a(c)(7)(C). There is no dispute that 1 Persaud’s motion to reopen, filed in February 2010, almost 2 fourteen years after the BIA affirmed the IJ’s denial of his 3 asylum application, was untimely. See id. 4 **A. Ineffective Assistance of Counsel** 5 The BIA did not abuse its discretion in declining to 6 equitably toll the time period for filing Persaud’s motion 7 to reopen because he failed to demonstrate that he exercised 8 due diligence in pursuing reopening based on his claim of 9 ineffective assistance of counsel. See Cekic v. INS, 435 10 F.3d 167, 170 (2d Cir. 2006). The BIA reasonably found that 11 other than the vague assertion that Persaud “tried to 12 contact” his former counsel, Persaud did not recount any 13 steps he took in pursuing his claim during the nearly 14 fourteen-year period between the BIA’s decision and his 15 motion to reopen, and thus failed to demonstrate that he 16 exercised due diligence in pursuing his claim “during the 17 entire period he . . . [sought] to toll.” Rashid v. 18 Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). In an affidavit 19 Persaud submitted before this Court, he asserts that his 20 former counsel told him that the BIA had not decided his 21 appeal, and that in mid-2001, he was no longer able to reach 22 his former counsel. Persaud does not mention any steps he 234 took to ascertain the status of his appeal to the BIA during 1 the more than eight years after he lost contact with his 2 former counsel, until he discovered, in 2009, that his 3 appeal had been denied. In addition, because Persaud’s 4 affidavit was not submitted to the BIA and is not part of 5 the administrative record, it is of no moment here. See8 6 U.S.C. § 1252(b)(4)(A) (mandating that “the court of appeals 7 shall decide the petition only on the administrative 8 record”). 9 **B. Discretionary Sua Sponte Reopening** 10 In Persaud’s motion to reopen, he requested that the 11 BIA reopen his removal proceedings sua sponteto allow him 12 to pursue cancellation of removal and adjustment of status 13 based on his mother’s approved I-130 Petition. The BIA, in 14 its discretion, may grant reopening outside the time 15 limitations for motions to reopen. See8 C.F.R. 16 § 1003.2(a). Although we lack jurisdiction to review the 17 BIA’s discretionary decision not to grant reopening sua 18 sponte , see Ali v. Gonzales , 448 F.3d 515, 518 (2d Cir. 19 2006), where the BIA declines to reopen sua spontebased on 20 a misperception of law, we will remand to the BIA, see 21 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We 225 have also explained that the BIA has a “duty to ‘consider 1 the facts of record relevant to the motion’ and provide a 2 ‘rational explanation’ for its ruling.” Sheng Gao Ni v. 3

BIA, 520 F.3d 125, 129-30 (2d Cir. 2008) (citing Melnitsenko 4 v. Mukasey, 517 F.3d 42, 50 (2d Cir. 2008)). 5 Here, the BIA erred in failing to address Persaud’s 6 request for sua spontereopening to allow him to pursue 7 adjustment of status or cancellation of removal. As the 8 Government argues, however, remand would be futile because 9 Persaud is statutorily ineligible for cancellation of 10 removal and adjustment of status. Adjustment of status is 11 available only if, inter alia , “an immigrant visa is 12 immediately available to [the alien] at the time his 13 application is filed.” 8 U.S.C. § 1255(a). Because 14 Persaud’s priority date is not current, remand to the BIA 15 for it to consider whether to reopen his deportation 16 proceedings to allow him to apply for adjustment of status 17 would be futile. See Conteh v. Gonzales , 461 F.3d 45, 64 18 (1st Cir. 2006). 19 Remand for the BIA to consider Persuad’s motion to 20

reopen sua spontebased on his application for cancellation 21 of removal would likewise be futile because he is ineligible 22 for this form of relief. Because Persaud’s proceedings 236 commenced (and even concluded) prior to the effective date 1 of the Illegal Immigration Reform and Immigrant 2 Responsibility Act (“IIRIRA”), the provisions regarding 3 cancellation of removal do not apply to him. See 8 U.S.C. 4 § 1229b(b) (setting forth eligibility requirements for 5 cancellation of removal). Instead, Persaud was required to 6 seek suspension of deportation under 8 U.S.C. § 1254(a)(1) 7 (repealed in 1996 with the enactment of IIRIRA), but failed 8 to do so. Cf. Arenas-Yepes v. Gonzales , 421 F.3d 111, 116- 9 17 (2d Cir. 2005). Accordingly, remand for the BIA to 10 consider in the first instance whether sua spontereopening 11 is warranted in its discretion would be futile. See Alam v. 12 Gonzales , 438 F.3d 184, 187-188 (2d Cir. 2006) (remand is 13 not required where “there is no realistic possibility that . 14 . . the IJ or BIA would have reached a different 15 conclusion”). 16 **C. Pending Motions** 17 Persaud moves to supplement his brief with evidence 18 that criminal charges against him were dismissed, which he 19 contends is relevant to his eligibility for cancellation of 20 removal. However, because this evidence is not part of the 21 administrative record and was not submitted to the BIA it 227 has no bearing on whether the BIA abused its discretion in 1 denying his motion to reopen. See8 U.S.C. § 1252(b)(4)(A). 2 Finally, because we deny Persaud’s petition for review on 3 the merits, we do not reach the Government’s motion to 4 dismiss based on the fugitive disentitlement doctrine. 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 34.1(b). 13
FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17 18