19

- 4102 Bah v. Garland BIA A 096 241 218



### 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**  **ELECTR ONIC 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** 1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **0 t**  **h d**  **a y of**  **J a**  **n u**  **a r**  **y , two thousand**  **twenty**

  4 ** two**

**.** 5 6 **PRESENT:** 7 **DEBRA ANN LIVINGSTON ,**  8 **C hief**  **Judge ,**  9 **MICHAEL H. PARK ,**  10 **STEVEN J. MENASHI ,**  11 **Circuit Judges.** 12

**_____________________________________** 13 14 **ABDOULAYE BAH ,**  15 **Petitioner ,**  16 17

**v. 19** 

**- 4102**  18 **NAC** 19 **MERRICK B. GARLAND , UNITED**  20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER :**  Khagendra Gharti

- Chhetry, Esq. , 25 New York, NY

. 26 27 **FOR RESPONDENT:** Ethan P. Davis, Acting Assistant 28 Attorney General ; Claire L. 29 Workman , Senior Litigation 302 Counsel ; Scott M. Marconda , Trial 1 Attorney, Office of Immigration 2 Litigation , United States 3 Department of Justice, Washington, 4
D C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 9

is DENIED in part and DISM ISSED in part. 10

Petitioner Abdoulaye Ba h , a native and citizen of Guinea , 11

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

denying hi s motion to reopen

. See In r e Abdoulaye Bah , No. 13

A 096 241 218 (B.I.A. Nov. 18 , 2019 ). We assume the parties’ 14

familiarity with the underlying facts and procedural history

. 15

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

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

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

if its “de cision provides no rational explanation, 19

inexplicably departs from established policies, is devoid of 20

any reasoning, or contains only summary or conclusory 21

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

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

233

– 34 (2d Cir. 2005) (internal quotation marks omitted). 243 The BIA did not abuse its discretion by denying Bah’s 1

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

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

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

8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90

- day deadline for 5

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

. His 6

eligibility for adjustment of status does not implicate any 7

exception to t he filing deadline. See 8 U.S.C. 8

§ 1229a(c)(7)(C)(ii)

- (iv) (listing exceptions); 8 C.F.R. 9

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

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

Ninth Circuit in declining to follow Matter of Yauri fails 12

because the Ninth C ircuit did not determine that eligibility 13

for adjustment of status is an exception to the time 14

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

to reopen sua sponte , regardless of wh at agency had 16

jurisdiction over the pending adjustment of status 17

a pplication. See Singh v. Holder , 771 F.3d 647, 652

– 53 (9th 18

Cir. 2014)

. 19

T he BIA may reopen sua sponte despite the time 20

limitation

. S ee 8 C.F.R. § 1003.2(a) (version in effect 214 until Jan. 15 , 2021) . But the BIA “invoke[s] [its] sua sponte 1

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

remedy reserved for truly exceptional situations.” In re G

3

D

- , 22 I. & N. Dec. 1132, 1133

– 34 (B.I.A. 1999). And we lack 4

jurisdiction to review the BIA’s “entirely dis cretionary” 5

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

. 6

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

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

background and thought, incorrectly, that a reopening would 9

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

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

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

it denied reopening only because he did not establish 13

exceptional circumstances. 14

For the foregoing reasons, the petition for review is 15

DENIED in part and DISMISSED in remaining part

. All pending 16

motions and applications are DENIED and stays VACATED. 17

FOR THE COURT: 18 Catherine O ’ Hagan Wolfe, 19 Clerk of Court 20