16-616 

Fichera v. Sessions

BIA 

A012 850 842

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 

17th day of October, two thousand seventeen. 

PRESENT: 

ROBERT A. KATZMANN, 

Chief Judge, 

REENA RAGGI, 

SUSAN L. CARNEY,

Circuit Judges. 

_____________________________________ 

PAOLO S. FICHERA, 

Petitioner, 

v. 16-616 

 NAC 

JEFFERSON B. SESSIONS, III, UNITED 

STATES ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER: Simone Bertollini, Paul F. O’Reilly, 

Law Offices of Simone Bertollini, 

New York, NY. 

FOR RESPONDENT: Benjamin C. Mizer, Assistant 

Attorney General; Shelley R. Goad, 

Assistant Director; Tim Ramnitz, 

Attorney, Office of Immigration 
2

Litigation, United States 

Department of Justice, Washington, 

DC. 

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 

DENIED. 

 Petitioner Paolo S. Fichera, a native and citizen of Italy, 

seeks review of a February 5, 2016, decision of the BIA denying 

his motion to reopen. In re Paolo S. Fichera, No. A012 850 842 

(B.I.A. Feb. 5, 2016). We assume the parties’ familiarity with 

the underlying facts and procedural history in this case. 

The petition for review is timely to challenge only the 

BIA’s denial of reopening, which we review for abuse of 

discretion. Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 

83, 89-90 (2d Cir. 2001); Ali v. Gonzales, 448 F.3d 515, 517 

(2d Cir. 2006). We find no abuse of discretion here. An alien 

may move to reopen within 90 days of the final removal order. 

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). The motion to 

reopen must be based on new evidence that was not previously 

available. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(1). 

And although the BIA may exercise its authority to reopen sua 

sponte, 8 C.F.R. § 1003.2(a), we lack jurisdiction to review 
3

the agency’s denial of sua sponte reopening because such a 

decision is “entirely discretionary,” Ali, 448 F.3d at 518. 

Fichera’s October 2015 motion to reopen was untimely filed 

more than two years after the September 2013 removal order. 8 

U.S.C. § 1229a(c)(7)(C)(i). It does not fall into a statutory 

or regulatory exception to the time limitation for motions to 

reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 

§ 1003.2(c)(3). Fichera asserted that the time to file his 

motion should be equitably tolled based on the Supreme Court’s 

April 2013 decision in Moncrieffe v. Holder, 133 S. Ct. 1678 

(2013), and Connecticut’s amendment of its marijuana laws. 

This argument is misplaced. Even assuming timeliness, the BIA 

denied reopening for lack of new evidence. INS v. Abudu, 485 

U.S. 94, 104 (1988). These legal developments are not new 

evidence and could have been raised in Fichera’s original 

proceedings or motion to reconsider. Furthermore, neither 

development changes the outcome of Fichera’s case because 

neither his removal order, nor the denial of relief, was based 

on a marijuana conviction. Fichera was ordered removed based 

on his 1997 conviction for possession of narcotics and his 2000 

burglary conviction. And the agency denied relief from removal 

based solely on the burglary conviction. 
4

Given the untimely filing and lack of new evidence, the only 

basis for reopening was the BIA’s decision not to exercise its 

authority to reopen sua sponte, which we lack jurisdiction to 

review. Ali, 448 F.3d at 518. While we have remanded where 

the BIA misperceived the law, that is not the case here. 

Mahmood v. Holder, 570 F.3d 466, 471 (2d Cir. 2009). The BIA 

did not find Fichera ineligible for relief; it merely concluded 

that there were no exceptional circumstances warranting sua 

sponte reopening. 

Our recent decision in Harbin v. Sessions, 860 F.3d 58 (2d 

Cir. 2017), may provide Fichera with a separate basis to 

challenge the controlled substance ground of removability. We 

express no opinion on the merits of such a challenge, which must 

be raised before the BIA in the first instance. 

We have considered Fichera’s remaining arguments and found 

them to be without merit. For the foregoing reasons, the 

petition for review is DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk