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 4th 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 Neiman-Kelting, Senior

Litigation Counsel; Stefanie Notarino

Hennes, Trial Attorney, Office of
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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
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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. See 8 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. 
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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