#### Luigj LUMAJ, Drita Lumaj, Xhozef Lumaj, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 10-1906-ag.

United States Court of Appeals, Second Circuit.

June 15, 2011.

*57H. Raymond Fasano, New York, NY, for Petitioners.

Tony West, Assistant Attorney General; Blair T. O’Connor, Assistant Director; Holly M. Smith, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: JOSÉ A. CABRANES, DEBRA ANN LIVINGSTON and RAYMOND J. LOHIER, JR., Circuit Judges.

*SUMMARY ORDER*

Petitioners Luigj Lumaj, his wife Drita Lumaj, and their son Xhozef Lumaj, all natives and citizens of Albania, seek review of an April 12, 2010, decision of the BIA denying their motion to reopen. *In re Luigj Lumaj, Drita Lumaj, Xhozef Lumaj,*Nos. [ AXXX XXX XXX ]/316/317 (B.I.A. Apr. 12, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. *See Kaur v. BIA,*413 F.3d 232, 233 (2d Cir. 2005) (per curiam). It is undisputed that petitioners’ motion to reopen was untimely filed as the agency’s final order of removal was entered in 2003 and the petitioners did not file their motion to reopen until 2010, well beyond the 90-day deadline. *See*8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Moreover, petitioners do not argue that one of the statutory or regulatory exceptions excused their untimely filing.

Instead, petitioners argue that the BIA erred in declining to reopen their removal proceedings *sua sponte.*The BIA’s decision regarding whether to reopen removal proceedings *sua sponte*is “entirely discretionary” and beyond the scope of our review. *See Ali v. Gonzales,*448 F.3d 515, 518 (2d Cir.2006) (per curiam). However, “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, remand to the Agency for reconsideration in view of the correct law is appropriate.” *Mahmood v. Holder,*570 F.3d 466, 469 (2d Cir.2009). Here, petitioners argue that the BIA declined to reopen their removal proceedings *sua sponte*based on its misperception of the agency’s regulations as requiring an alien to demonstrate past persecution in order to establish eligibility for humanitarian asylum. Petitioners’ argument is without merit.

The relevant regulation provides that:

> An applicant described in paragraph (b)(l)(i) of this section ... may be granted asylum, in the exercise of the decision-maker’s discretion, if:

> (A) The applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or

> (B) The applicant has established that there is a reasonable possibility that *58he or she may suffer other serious harm upon removal to that country.

8 C.F.R. § 1208.13(b)(l)(iii). Petitioners contend that because subsection (B) does not refer to past persecution, an alien can qualify for humanitarian asylum based on a reasonable possibility of suffering serious harm upon removal without a demonstration of past persecution. This reading of the regulation ignores the sentence preceding subsections (A) and (B) limiting the applicability of those subsections to applicants “described in paragraph (b)(l)(i),” namely applicants who have suffered past persecution, but who are ineligible for asylum because either there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution or the applicant can relocate within his or her country of nationality to avoid future persecution. 8 C.F.R. § 1208.13(b)(1)(i), (iii). Thus, contrary to petitioners’ contention, the BIA did not misperceive the law by stating that an applicant must demonstrate past persecution in order to demonstrate eligibility for humanitarian asylum. *See 8*C.F.R. § 1208.13(b)(l)(iii); *see also Kone v. Holder,*596 F.3d 141, 146 (2d Cir.2010) (recognizing that humanitarian asylum “is reserved for *persecuted*aliens whose persecution was particularly severe or who may suffer ‘other serious harm’ if removed”) (quoting 8 C.F.R. § 1208.13(b)(l)(iii))(emphasis added). Accordingly, we lack jurisdiction to review the BIA’s decision declining to reopen petitioners’ proceedings *sua sponte. See Mahmood,*570 F.3d at 469; *Ali,*448 F.3d at 517-18.

For the foregoing reasons, the petition for review is DISMISSED. 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(b).