19-4102

Bah v. Garland

BIA

A096 241 218

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.

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

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 20th 4 day of January, two thousand twenty5 two.

6

7 PRESENT:

8 DEBRA ANN LIVINGSTON,

9 Chief Judge,

10 MICHAEL H. PARK,

11 STEVEN J. MENASHI,

12 Circuit Judges.

13 _____________________________________

14

15 ABDOULAYE BAH,

16 Petitioner,

17

18 v. 19-4102

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Khagendra Gharti-Chhetry, Esq., 

26 New York, NY.

27

28 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 

29 Attorney General; Claire L. 

30 Workman, Senior Litigation 
2

1 Counsel; Scott M. Marconda, Trial 

2 Attorney, Office of Immigration 

3 Litigation, United States 

4 Department of Justice, Washington, 

5 DC.

6

7 UPON DUE CONSIDERATION of this petition for review of a 

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

9 ORDERED, ADJUDGED, AND DECREED that the petition for review 

10 is DENIED in part and DISMISSED in part. 

11 Petitioner Abdoulaye Bah, a native and citizen of Guinea, 

12 seeks review of a November 18, 2019 decision of the BIA 

13 denying his motion to reopen. See In re Abdoulaye Bah, No. 

14 A096 241 218 (B.I.A. Nov. 18, 2019). We assume the parties’ 

15 familiarity with the underlying facts and procedural history. 

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

17 abuse of discretion. See Zhao Quan Chen v. Gonzales, 492 

18 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion 

19 if its “decision provides no rational explanation, 

20 inexplicably departs from established policies, is devoid of 

21 any reasoning, or contains only summary or conclusory 

22 statements; that is to say, where the Board has acted in an 

23 arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 

24 233–34 (2d Cir. 2005) (internal quotation marks omitted).
3

1 The BIA did not abuse its discretion by denying Bah’s 

2 motion to reopen. It is undisputed that Bah’s 2019 motion 

3 to reopen was time barred because he filed it 14 years after 

4 the agency issued his final order of removal in 2005. See 

5 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for 

6 motions to reopen); 8 C.F.R. § 1003.2(c)(2) (same). His 

7 eligibility for adjustment of status does not implicate any 

8 exception to the filing deadline. See 8 U.S.C. 

9 § 1229a(c)(7)(C)(ii)-(iv) (listing exceptions); 8 C.F.R. 

10 § 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103, 

11 105 (B.I.A. 2009). Bah’s argument that we should follow the 

12 Ninth Circuit in declining to follow Matter of Yauri fails 

13 because the Ninth Circuit did not determine that eligibility 

14 for adjustment of status is an exception to the time 

15 limitation; rather, that court held that the BIA had authority 

16 to reopen sua sponte, regardless of what agency had 

17 jurisdiction over the pending adjustment of status 

18 application. See Singh v. Holder, 771 F.3d 647, 652–53 (9th 

19 Cir. 2014). 

20 The BIA may reopen sua sponte despite the time 

21 limitation. See 8 C.F.R. § 1003.2(a) (version in effect 
4

1 until Jan. 15, 2021). But the BIA “invoke[s] [its] sua sponte 

2 authority sparingly, treating it . . . as an extraordinary 

3 remedy reserved for truly exceptional situations.” In re G4 D-, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). And we lack 

5 jurisdiction to review the BIA’s “entirely discretionary”

6 decision not to reopen a case sua sponte under § 1003.2(a). 

7 Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Although 

8 we may remand to the BIA if it “misperceived the legal 

9 background and thought, incorrectly, that a reopening would 

10 necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d 

11 Cir. 2009), such a circumstance does not exist here. The BIA 

12 did not speak to the merits of Bah’s adjustment application, 

13 it denied reopening only because he did not establish 

14 exceptional circumstances. 

15 For the foregoing reasons, the petition for review is 

16 DENIED in part and DISMISSED in remaining part. All pending 

17 motions and applications are DENIED and stays VACATED.

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, 

20 Clerk of Court