10-4271-ag Pankratov v. Holder BIA A073 184 371 

### 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 Daniel Patrick Moynihan**  **United States Courthouse, 500 Pearl Street, in the City of New York, on the 4**  **th day of January, two thousand twelve.** 
**PRESENT: JON O. NEWMAN,**  **ROBERT A. KATZMANN, SUSAN L. CARNEY,**  Circuit Judges **.**

**_______________________________________ NIKOLAY PANKRATOV**  Petitioner **, v. 10-4271-ag**  **NAC ERIC H. HOLDER, JR., UNITED STATES**  **ATTORNEY GENERAL,** Respondent **.**

**______________________________________ FOR PETITIONER:**  **Alexander J. Segal, Grinberg & Segal, P.L.L.C., New York, New York.**  **FOR RESPONDENT: Tony West, Assistant Attorney General;**  **Melissa Ne iman-Kelting, Senior**  **Litigation Counsel; Stefanie Notarino Hennes, Trial Attorney, Office of** -2- **Immigration Litigation, Civil Division, United States Department of Justice,**  **Washington, D.C.** 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 Nikolay Pankratov, a native of Ukraine and citizen of Russia, seeks review of a September 29, 2010, order of the BIA denying his motion to reopen. In re Nikolay Pankratov , No. A073 184 371 (B.I.A. Sep. 29, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). Here, because all of Pankratov’s evidence and arguments had previously been before the BIA in connection with his first motion to reopen, the BIA reasonably denied his motion as it repeated arguments that it had already rejected.
See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at-3- the former hearing . . .”); Jin Ming Liu v. Gonzales , 439 F.3d 109, 111 (2d Cir. 2006) (per curiam) (“The BIA does not abuse its discretion by denying a motion to reconsider where the motion repeats arguments that the BIA has previously rejected.”). Moreover, as the BIA noted, insofar as Pankratov’s motion sought reconsideration of the BIA’s October 2009 decision, it was untimely because it was not filed within 30 days of that decision. See8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). In addition to the fact that we find no abuse of discretion in the BIA’s denial of the motion whether construed as a request to reopen or a request for reconsideration, we lack jurisdiction to consider Pankratov’s challenge to the agency’s decision not to exercise its sua sponte authority as that decision is entirely discretionary. See Ali , 448 F.3d at 518. Although remand may be appropriate “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail,” Mahmood v. Holder , 570 F.3d 466, 469 (2d Cir. 2009), Pankratov has not argued that the BIA misperceived the law.-4- For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk