1 Pu rsua nt to F ed era l Ru le of A ppe llate P roc ed ure 43(c )(2), A cting Atto rne y G ene ral P eter D. K eisler is

automati call

y subst itut ed for fo rmer Attor ney General Al berto R. Gonzales a s a res pondent i n thi s case. 2 The Honorable Wil

li am H. Pauley II I, of the United St ates Distr ict Court for

the Southern Dist

rict of New York, s itt ing by des ignat

ion. 

## 1 05-4194-a g Cyrus v. Keisl er 

## UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2006 (Argued: M

ay 22, 2007 Decided: Oct ober 19, 200 7) Docket No. 0 5-4194-ag G EORGE 

## D ESMOND 

## C YRUS 

## ,

Petitioner ,

v. P ETER 

## D. K

EIS LER 

## , 1 

## Attorney G eneral o f the Unite d States, Respondent. Before: W

ALKER 

## and C ABRANES 

## , Circuit Judges , and P AULEY 

## , 2 

## District Judge

. Petition er seeks r

eview of an or

der of the Board of Immigrat ion Appeals(“BIA”) d enying his motion to reopen rem oval proceed

ings so t hat he could a

pply for a wa

iver of inadmissabi

lity under former s ection 212(

c) of the I mmigratio n and Nationality Act (“INA”), in con junction wi

th an application for adjustment of status under section 245(a) of the INA. We conclude (1) that the BIA was correct in determining that petitioner is not eligible for a waiver of inadmissibility and is therefore not entitled to reopening pursuant to 8 C.F.R. § 1003.44, and (2) that we lack jurisdiction to review the BIA’s decision not to sua sponte reopen pet

itioner’s removal pr

oceedings p ursuant

to 8 C.F.R. § 1003.2(a). Petition for revie w is (1) den

ied in part insofar as it seeks

to reopen r

emoval proc eedings so

that petitioner can apply for

waiver of inadmissib

ility under former s ection 212(

c) of the INA, and (2)3 In 1988, Cyrus had pl eaded guil ty t o one misdemeanor count of sexua l misco nduct and one mis demeanor count of as saul t. He serv ed a se nten ce of si xty days’

inc arcer ati on i n jail

for each o f t hese off

ense s. In 1 989, Cyrus pleaded guilty to one misdem eanor cou nt for the criminal sale of m arijuana. In 1991, he plead ed guilty to felony firearm posses sion charges for whi ch he recei ved a sent ence of one y ear’ s impri sonment. Final ly, in August

1996, he was found guilty, foll owing a be nch trial, of felony assault and was senten ced to im prisonme nt for three to six years.

4 Pursuant to section 2 37(a)(2)(C ), an ali en shal l be r emoved “if the ali en is within one or more of the fo ll owing class es of dep orta ble a liens,” inclu ding :

Any ali en who at any time aft er admiss ion i s convi cted under any law of pur chasi ng, s ell

ing, offer ing for sale, ex chan ging, using , ownin g, possessin g, or carr ying, or o f attem pting or c onspirin g to purchase , sell,offer for sale, exchange, use, ow n, possess, or carry, any weap on, part, or accessory which i s a firearm or dest ructi ve device (

as defi ned in s ecti on 921(a) of Tit le 18) in vi olat

ion of any law is deportab le. 8 U.S.C. § 1227 (a)(2)(C ). 

## 2 dismissed in part insofar as it seeks review of the BIA’s decision not to reopen sua sponte the removal proceedings. M ATT HEW 

## L. G UADAGN O 

## (Kerry W. B retz and Ju les E. Coven, on the brief ), Bretz & Coven, LLP , New York, N Y, for Petitioner. D IONE 

## M. E NEA 

## , Special Assistant Un ited States Attorney (Roslynn R. Mauskopf, United States Attorney, and Scott Dunn, Assistant Un

ited States Attorney, on the brief

), United Stat

es Attor ney’s Off ice for th e Eastern D istrict of New York

, Brookly n, NY, for Respondent

. P ER 

## C URIAM 

## : Petitioner George Desmond Cyrus, a native and citizen of Trinidad & Tobago, seeks review of an order of

the Board

of Immigr

ation Appeals

(“BIA” or

“Board”) denying hismotion to reopen removal pr

oceedings. In re Geo rge Desmond Cyrus , No. A 34 341 7 63 (B.I. A. July 7, 20 05). Cyrus lawfu lly entered th e United Stat

es in 1975 and became a lawfu l permanent

resident

. On November

4, 1991, Cyrus was convicted in the Supreme Court of the State of New York for criminal possession of a firearm. 3 

## On September 29, 1998, the then-Immigration and Naturalization Service charged Cy rus with deportabi lity under section 23 7(a)(2)(

C) of the INA, 8 U.S.C. § 1 227 (a)(2)(C ), 4 

## on the basi s of his 1991 conviction

for crim inal firear m posses sion, and b egan removal proceedings. Durin

g the remov

al proceedings before the IJ, Cyrus conceded deportability on the basis of his firearm conviction, but5 Sec tion 2 40A (a) of th e IN A, 8 U.S .C. § 1 229 b(a), p rov ides in pe rtine nt pa rt: Th e A ttorn ey G ene ral m ay c anc el rem ova l in the case of an alien wh o is ina dm issible or d epo rtab le from the Unit ed Stat es if the al ien— (1) has been an alien lawfu lly admitted for perm anent residenc e for not less than 5 years, (2) ha s resid ed in the Un ited S tates c ontin uou sly fo r 7 ye ars a fter h avin g be en a dm itted in any st atus,and (3) has not

been convi cted of a ny aggrava ted fel ony 

## . 6 Form er IN A sec tion 212 (c) grante d the A ttorney Ge neral d iscretion to grant w aiver o f inadm issibility relief to certai n legal permanent re sident s. Secti on 212(c) was repeal ed in 1996 by the I ll egal I mm igra tio n Reform and Immigrant Re spon sibility A ct of 1 996 (“IIR IRA ”), bu t sectio n 21 2(c) r elief r em ains a vaila ble to alien s wh o ple ade d gu ilty to c erta in crim es pr ior to th e en actm ent o f IIR IRA and wh o oth erw ise w ould hav e be en e ligible for th at relie f. See INS v. St. Cyr , 533 U.S. 28 9, 326 (

2001). Regulat

ions of the Department of Homeland Secur ity provide that

secti on 212(c) reli ef rem ains a vaila ble fo r tho se w ho p lead ed guilty prior to N ove m ber 29, 1 990

. See 8 C.F.R. § 1212. 3(f) (4)( i). The tort

ured hist ory of t

he availabil

ity of thi s form of r eli ef is recounte d in Blake v. Carbone , 489 F .3d 88 , 93–9 8 (2d C ir. 2007). Section 212 (c) provides: Aliens lawful

ly admit ted for

permanent re sident

who temporari

ly pro ceeded abroad voluntari ly and not under a n order of

deportat ion, and who are ret

urning to a l awful unre li nquished domici le of seven consecut ive year s, may be admitted in the di scret ion of the Att orney General

without regard t o the provis ions of subs ecti on (a) of thi s sect ion ( other t

han paragr aphs ( 3) and ( 9)(C) ). Nothing co ntai ned in this su bsec tion sh all lim it the a utho rity of the A ttorn ey G ene ral to e xer cise th e dis cre tion v este d in him under sect

ion 1181(

b) of t his t itl e. The fi

rst sente nce of this s ubsecti on shal l not apply t o an ali en who has been convict ed of one or more aggravat ed felon ies a nd has ser ved for s uch fel ony or fel onies a term of im prisonme nt of at least 5 years.



## 3 Cyrus sought cancellation of removal under section 240A(a) of the INA, 8 U.S.C. § 1229b(a). 5 

## In these so-called “ removal” pr

oceedings,

the IJ fo und on Apri

l 22, 1999 th at Cyrus wasdeportable on the bas is of the fir earms conv

iction. Cyrus had been convicted of other crimes, but only his firearm conviction resulted in a finding of inadmissability. The IJ further found that Cyrus was ineligible for cancellation of removal pursuant to section 240A(a) on the basis of his prior conviction for the criminal sale of marijuana, w

hich would b e classified as an aggrav ated felony u

nder the INA. Cyrus filed a timely appeal from the IJ’s decision on April 28, 1999, in which he did not challenge the

IJ’s fi nding of inadmissib

ility but ar gued that he

should be p ermitted

to file fo r a waiver of inadmissibility under former section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996) (“section 212(c)”). 6 

## On Septemb er 10, 1999, the BIA co ncluded that

it lacked jur

isdiction to hear Cyru s’s8 U .S.C . § 118 2(c) (r epe aled 199 6). 7 The record i ndicat es a di screpanc y between t he date on whi ch Cyrus cl aims to have fi led th e motion, April

18, 2000, and t

he date i t was r eceived by t he BIA, May 18, 2000. Becaus e the moti on to r eopen had to be fi led by December 9, 1999 to be ti mely pursuant to 8 C.F. R. § 1003. 2(c) (2), thi s dis crepancy i s not signifi cant, inas much as the motion w as over four m onths overd ue as of the earlier of the two d ates.

8 Tha t regulatio n prov ides in pe rtinent pa rt: This s ecti on appli es to certai n ali ens who for merly were l awful per manent resi dents, who are subj ect to an admini str ati

vely f inal order of deportat

ion or removal, and who are el igi ble t o apply f

or rel ief und er form er sectio n 212 (c) of the [Im migr ation an d N aturalizatio n] Ac t and 8 C.F.R . § 1212 .3 with respect to convi cti ons obt ained by pl ea agreements reached pri or to averdict at trial prior to April 1, 1997. A spe cial

motion t o seek re li ef under s ecti on 212(c) of the Act wil l be adj udicate d under the stand ard s of th is sec tion a nd 8 C .F.R . § 1212.3. This s ecti on is not appl icabl e with r espect

to any con victio n en tere d af ter tria l. 8 C.F .R. § 100 3.44(a).

9 Pursuant t o 8 C.F.R. § 1003. 2(a) , the BIA may

at an y tim e reo pen or re con side r on its ow n m otion any case in wh ich it h as re nd ere d a d ecisio n. A request to reo pen or rec onsider any case i

n which a deci sion has been made by the Board, whi ch request is made by t

he [Unit ed Stat es Cit

izens hip and I mm igra tio n] Servi ce, or by the pa rty af

fected by the deci sion,

must be i n the f

orm of a writ

ten moti on to t

he Board. The deci sion to gra nt or deny a m otion to reo pen or re con side r is with in the disc retio n of th e B oar d, su bjec t to the restric tions o f this section. T he B oard has disc retion to d eny a mo tion to reo pen e ven if the party m oving h as m ade out a 

## 4 argumentsbecause “rel

ief under s ection 212(

c) [was] no t available in

removal pr

oceedings. ” In re George Desmond Cyr

us , No. A 34 341 7 63 (B.I. A. July 7, 20 05). He filed a motion t o reopen removal proceedings on May 18,

2000 7 

## and, on May 27, 2000, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. On September 5, 2000, the BIA denied his motion to reopen as untimely. On March 8, 2002, the District Court denied his petition for a writ of ha

beas corpu s on the gr

ound that h e was ineligible for relief from removal under section 212(c). Cyrus v. Ashcroft

, No. 00-CV- 3621, 2002 WL 377050, *2 (E .D.N.Y Mar . 8, 2002). T he Distr ict Court concl

uded that Cyr

us’s conv iction for posses sion of a f

irearm rendered sec tion 212(c ) relief unavailable t

o him. Id. Cyrus did not appeal the District Court’s decision. On April 26, 2005, almost six years after the BIA’s initial adverse ruling, Cyrus filed a second motion to reopen the

removal pr

oceedings p ursuant

to 8 C.F.R. § 1 003.44, 8 

## which permi ts reopen ing in order to apply for section 212(c) relief, and 8 C.F.R. § 1003.2(a), 9 

## which au thorizes sua sponte reopeningprima facie ca se for relief.

8 C.F .R. § 100 3.2(a).

10 Under secti on 245(a) , the Attor ney General ha s dis creti on to adj ust t he sta tus of

“an al ien who was inspected and adm itted or paroled into the U nited States” to that of lawful perm anent resident if:

(1) the al ien makes an appli cati on for s uch adjust ment, ( 2) t he ali en is eligibl e to re ceive an immigrant visa a nd is adm issible to the Un ited S tates f or p erm ane nt re side nce , and (3) an imm igran t visa is immediat ely

avai lab le t o hi m at t he time hi s app li cati on i s fi led. 8 U.S.C. § 1255(a

) 

## . 11 Pursuan t to regulations enacted after St. Cyr , a pet iti oner i s ine li gibl e for s ecti on 212(c) reli ef i f “[t ]he al ien is depor tabl e under former s ecti on 241 of t he Act or r emovable under s ecti on 237 of t he Act on a gr ound which does not h ave a statu tory cou nter par t in sec tion 2 12 o f the A ct.” 8 C .F.R . § 121 2.3(f) (5); see Blake , 489 F .3d at 99 (uphol ding applica tion of statu tory co unter part ru le in similar c ontex t). Here, t here i s no dis pute t hat Cyrus’ s fi rearm convic tio n ren de rs him dep orta ble u nd er fo rm er se ction 241 (a)(2)(C ) of the IN A. 

## 5 by the BIA

. His motion described his intent to seek adjustment of status under section 245(a) of the INA, 8 U.S.C. § 1255(a), 10 

## in conjunct ion with a waiv

er of inadm

issibili ty under s ection 212(

c), see note 6, ante . The BIA

denied Cyrus ’s motion

to reopen t

he removal p roceedingsin a decisio n of July 7 , 2005. In order to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.44, the BIA concluded, Cyrus mus t establis h that he waseligible for waiver of inadmissib

ility under section 21 2(c). Section 212(c) relief, in turn, depends on Cyrus’s showing that section 212(a) contains a comparable ground of inadmissibility to that ground for which he is removable, namely his 1993 firearms conviction. 11 

## Because Cyr

us conceded

that his f irearms c onviction d oes not hav e a statuto ry counter

part under section 21 2(a), the B IA concluded that he is i

neligible fo r 212(c) r

elief. The B IA obser

ved that 8 C.F .R. § 1003.44 provides for reopening “solely for the purpose of adjudicating the application for section 212(c) rel ief” and accor

dingly denied

the motion

. Id. (referen cing form er INA § 212 (c), 8 U.S.C. § 1182(c) (repealed 1996))

. The BIA d ecision did not addres s Cyrus’s

request f or a sua sponte

reopening pursuant to 8 C.F.R. § 1003.2(a). On appeal, Cyrus argues that the BIA erred in concluding that he was not entitled to reopening based on th e BIA’s p urporte d misinterpretation of the “s pirit” of 8 C.F.R. § 1003 .44. In th e alternati ve, he asks for a remand in order for the BIA to deter mine whe ther to reop en the proc eedings sua sponte .12 Cyrus argues that he shoul d be permitt ed to reop en removal pr oceedings in or der to pur sue sect ion 212(c) rel ief on t he bas is of hi s other co nvic ti ons; however , t he remova l or der was base d sol ely on hi s fi rear m convi cti on and, thus , 212 (c) re lief is u nav ailab le on those grou nd s. 

## 6 The Government asserts that the BIA’s decision not to reopen removal proceedings pursuant to 8 C.F.R. § 1003. 44 was corr

ect. The Go

vernment f

urther co ntends that Cyrus cou ld not move

to reopen under 8 C.F .R. § 1003.44 f or any other

purpose a

nd that th e BIA pro perly declin ed to reopen proceedi ngs sua sponte . DISCUSSION We write briefly to clarify two points. First, we observe that, as a matter of law, reopening on the basisof 8 C.F.R. § 1 003.44 is n ot available t o a petition er who is n ot eligible f or sectio n 212(c) relief. Seco nd, we reaff

irm that we

lack juris diction to

review the B IA’s decision not to reopen rem oval proceedi ngs sua sponte. A. The BIA’ s Denial of the Motio n to Reopen pu rsuant t o 8 C.F.R. § 100 3.44 We review the d enial of a mot ion to reo pen for abu se of dis cretion. See Jie Chen v. Gonzales, 436 F.3d 76, 77 (

2d Cir. 2006

); Kaur v. BIA , 413 F.3d 23 2, 233 (2d Cir . 2005). As an initial matter, w

e note that Cy

rus doesnot contes t that the g round on wh

ich he was ordered removed, his 1991 weapons possession conviction, is not subject to waiver under section 212(c). 12 

## Therefore, as the BIA properly concluded, he is ineligible for section 212(c) relief pursuant to 8 C.F.R. § 1212 .3(f)(5) . While that s hould end t he matter, we write to underscore what shou ld be an obvious p roposit

ion—namely,

that reopening remov

al proceedin

gs on the b asis of 8C.F.R. § 1003. 44 is not avail

able to a peti

tioner ine ligible for sect

ion 212(c) relief

because 8 C.F.R. § 1003.44 by its terms allows reo pening “solely

for the pu

rpose of adjudicatin

g the applicat

ion for s ection 212(

c) relief. ” 8 C.F.R. § 1003. 44(e). In addition, section 1003.44(b) states clearly that a m otion for reopening “ to seek section 21 2(c) relief

must est ablish tha t the alien . . . [i]s ot

herwise eli

gible to appl

y for sect ion 212(c) relief und er the st

andards t hat were in ef

fect at the t

ime the alien ’s plea was m ade, regardless of wh en

## 7

the plea was entered by the court.” 8 C.F.R. § 1003.44(b). Thus, by its own terms, the text of the regulation clearly limits motions for reopening to those petitioners who, upon reopening, could or would be eligi

ble to pur sue secti on 212(c) r elief. This com monsens e reading com

ports wi th the pur pose of t he regulati on, which wasdesigned to permit certain lawful permanent residents to apply for section 212(c) relief in response to the Supreme Court’s decision in INS v. St. Cyr , 533 U.S. 289 (2001). St. Cyr held that certain provisions of AEDPA and IIRIRA, which narrowed and then eliminated section 212(c) discretionary relie f, did not apply retr oactively. Id. The Court held that “section 212(c) relief remains available for [those] . . . who . . . would hav

e been eligible for § 212(

c) relief at the time of

their plea u

nder the law

then in eff

ect.” Id. at 326. In r

esponse, 8 C.F.R. § 1003 .44(e) was p roposed i n order t o “codify th e Supreme Cou rt’s holding” and

permit ali ens to reo pen proceed ings where

they had been e

ligible for section 21 2(c) relief “at the time of their pleas[.]” Section 212(c) Relief for Aliens With Certain Criminal C onvictions Before Ap ril 1, 1997,

67 Fed. Reg. 52 627, 52628 ( proposed Aug. 13, 2002

) (later co dified at 8 C. F.R. pts. 2, 21 2, and 240) (

citation om

itted). When propos ed, the agency’ s comment s on the r ule restr icted eligibility for relief thereunder to those who “at a minimum, meet [certain] criteria to be considered for a waiver under

section 21 2(c).” Id. Those cr iteria incl ude that “[t

]he alien is deportable or remov able on a ground

that has a co rresponding ground of exclusion or inad missibi lity.” Id. at 52628–29 (referencing the eligibility requirements of section 212(c)). Having conceded that his firearm conviction, the sole basis for the finding of inadmissibility, has no statutory counterpart, Cyrus is not only ineligi

ble for s ection 212(

c) relief b ut also ine

ligible, by d efinition , for reo pening his removal proceedings on the bas

is of 8 C.F .R. § 1003.44. Permitting a petitioner who would be ineligible for section 212(c) relief to reopen the proceedings pursu

ant to 8 C.F. R. § 1003.44 isinconsis tent with t he text and p urpose of

the regulat

ion. Accordingly, the BIA did not err, or “abuse its discretion,” in concluding that Cyrus was not entitled to

## 8

reopen rem oval proceed

ings for the purpo se of seek

ing sectio n 212(c) relief under 8 C.F.R. § 1003 .44. Cf. Zervos v. Verizon N.Y., Inc. , 252 F.3d 163, 169 (2d Cir. 2001) (“error of law” constitutes “abuse of discretion”).

B. The BIA’s Dec ision Not to Reopen R emoval Pro ceeding s Sua Sponte Cyrus also seeks revi ew of the BIA ’s decisio n declin ing to reop en his remo val proce edings sua sponte pursuant to 8 C.F.R. § 1003.2(a ). The BIA’s d ecision n ot to reope n removal proceedi ngs sua sponte is an “entir

ely discret ionary” deci sion for

which “we lack ju

risdiction to revie

w.” Ali v. Gonzales, 448 F.3d 515 , 518 (2d Cir . 2006). Chall enges to di scretionary decisio ns, like th e one raised here, “essentially disput

e[] the cor rectness of an IJ’s fact-finding or th e wisdom of his exerci se of dis cretion.” Barco-Sandoval v. Gonzales , 496 F.3d 13 2, 136 (2d Cir . 2007). Aswe have state d repeatedl y, such discretionary decisions are be yond our review. See id. ; Camara v. Dep’t of Homeland Sec. , 497 F.3d 12 1, 124 (2d Cir. 2007); Carcamo v. U.S. Dep’t of Justice , 498 F.3d 94, 97 (2d Cir. 2007). We are therefore without jurisdiction to review the BIA’s decision to not reopen sua sponte the removal

proceedings. CONCLUSION For the r easons s tated above,

(1) the pet

ition is d enied in par

t insofar as it seeks

to reopen removal proceedings so that he can apply for waiver of inadmissibility under former section 212(c) of the INA; and (2) the petition is dismissed in part insofar as it seeks review of the BIA’s decision not to reopen sua sponte

the removal

proceedings.