APS-297 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 05-2803

________________

RAJ KUMAR SHARMA,

 Petitioner

 v.

ATTORNEY GENERAL OF THE

UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order

of the Board of Immigration Appeals

(Agency No. A72 432 452)

_______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

July 8, 2005

Before: SLOVITER, NYGAARD,* and FUENTES, Circuit Judges

(Filed: July 20, 2005)

 

* Honorable Richard L. Nygaard assumed senior status on July 9, 2005.
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_______________________

 OPINION

_______________________

PER CURIAM

Raj Kumar Sharma petitions for review of an order of the Board of Immigration

Appeals (BIA) which denied his motion for reconsideration as untimely. The

Government has filed a motion for summary affirmance. For the reasons that follow, we

will grant the Government’s motion and will deny the petition for review.

Sharma is a native and citizen of India. He entered the United States without

inspection in 1991. He submitted an affirmative asylum petition, and was issued a notice

to appear in September 1998. An Immigration Judge (IJ) denied relief on July 6, 1999. 

The BIA denied his appeal on August 20, 2002. Sharma filed a motion to reopen on

March 17, 2005, arguing that he was denied due process because he did not receive a full

and complete translation of his proceeding before the IJ. The BIA denied the motion as

untimely. 

This court’s review extends only to the BIA’s order denying Sharma’s motion to

reopen or reconsider. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789

F.2d 1028, 1033-34 (3d Cir. 1986). The decision to deny a motion to reopen is within the

Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.

2001). Under the regulations, the Board “has discretion to deny a motion to reopen even
 Sharma’s motion inexplicably asks this Court to “reconsider its prior decision to deny 1

Petitioner’s motion to stay his removal from the United States.” We are not able to locate

any prior appeal or motion by Sharma in this Court.

 The transcript reflects that the IJ informed Sharma’s attorney of the time to appeal, 2

and the record shows that Sharma did, in fact, file a timely appeal to the BIA.

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if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a).

A motion to reconsider must be filed within 30 days of the BIA’s decision. 

8 C.F.R. § 1003.2(b)(2). Unless certain exceptions apply, such as changed country

conditions, a motion to reopen before the Board must be filed within 90 days of the final

order. 8 C.F.R. § 1003.2(c)(2). Whether Sharma’s motion was construed as a motion to

reconsider or a motion to reopen, it was filed over two years late. 

Sharma’s stay motion argues that he was deprived of due process because he did 1

not receive a proper and complete translation of the proceedings and because the IJ failed

to advise him of his right to appeal to the BIA. His stay motion does not address the fact 2

that his motion before the BIA was untimely. 

After the Government filed its motion for summary affirmance, Sharma responded. 

Although his arguments are somewhat unclear, the response appears to argue that because

the BIA has the authority to sua sponte reopen or reconsider any decision it has made

without regard to time restraints, and because the BIA sometimes reopens a proceeding

where there has been a gross miscarriage of justice, this Court may still review his claims. 

Sharma concedes that many courts have held that they may not review the BIA’s decision

to decline to reopen or reconsider a case sua sponte, but he does not recognize in his
 Sharma’s motion for a stay of removal is denied. 3

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response that this Court is one of those which have so held. See Calle-Vujiles v.

Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003) (“[b]ecause the BIA retains unfettered

discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this

court is without jurisdiction to review a decision declining to exercise such discretion to

reopen or reconsider the case.”).

We need not reach the issue of whether this Court could reach the merits of

Sharma’s case if it found a gross miscarriage of justice, as Sharma has not shown that a

gross miscarriage of justice occurred in his case. As Sharma has not shown that the BIA

abused its discretion in denying his motion, his petition for review will be denied.3