21-6407

Sherpa v. Garland

BIA

A213 078 013

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 for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 23rd day of January, two thousand 

twenty-four.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

STEVEN J. MENASHI,

ALISON J. NATHAN,

Circuit Judges.

DAWA PHINJO SHERPA,

Petitioner,

v. 21-6407

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.
2

FOR PETITIONER: Ramesh K. Shrestha, New York, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 

Attorney General; Jennifer P. Levings, 

Assistant Director; James A. Hurley, 

Attorney, Office of Immigration 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 Dawa Phinjo Sherpa, a native and citizen of Nepal, seeks review 

of a June 29, 2021 decision of the BIA denying his motions to reconsider its 

dismissal of his appeal as untimely and to reopen his removal proceedings. In re

Dawa Phinjo Sherpa, No. A213 078 013 (B.I.A. June 29, 2021). We assume the 

parties’ familiarity with the underlying facts and procedural history. 

As an initial matter, we note that Sherpa has abandoned any challenge to 

the BIA’s denial of his motion to reconsider by not addressing that ruling in his 

brief and thus we do not consider the BIA’s decision as to that issue. See Debique 

v. Garland, 58 F.4th 676, 684 (2d Cir. 2023). We review the BIA’s denial of Sherpa’s 

motion to reopen for abuse of discretion, though we review conclusions of law de 
3

novo. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Jiang v. Garland, 18 F.4th 

730, 734 (2d Cir. 2021). “An abuse of discretion may be found . . . where the 

Board’s decision provides no rational explanation, inexplicably departs from 

established policies, is devoid of any reasoning, or contains only summary or 

conclusory statements; that is to say, where the Board has acted in an arbitrary or 

capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 

2001) (citations omitted).

We conclude that the BIA did not abuse its discretion when it denied 

Sherpa’s motion to reopen. Whether framed as a jurisdictional rule or a claimprocessing rule, the BIA followed its regulations and precedent to decline to rule 

on Sherpa’s motion to reopen because it had not adjudicated the merits of his 

underlying appeal. See 8 C.F.R. § 1003.2(a); Matter of Mladineo, 14 I. & N. Dec. 591, 

592 (B.I.A. 1974) (“Where, as here, dismissal by the Board was solely for lack of 

jurisdiction, so that [it] made no adjudication on the merits, the attempted appeal 

is nugatory and the decision of the immigration judge remains undisturbed. If 

thereafter a motion is made to reopen or reconsider that decision, there appears to 

be no reason why the immigration judge should not adjudicate it . . . .”); see also In 
4

re Lopez, 22 I. & N. Dec. 16, 17 (B.I.A. 1998) (“[W]here the Board dismisses an appeal 

solely for lack of jurisdiction, without adjudication on the merits, . . . the 

Immigration Judge retains jurisdiction over any subsequent motion to reopen or 

reconsider.”). Further, in summarily dismissing Sherpa’s appeal, the BIA 

informed him that he should file any motion to reopen with the immigration court. 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court