10-981-ag

Dacaj v. Holder

BIA

A078 716 980

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 day of April, two thousand eleven. th

PRESENT:

JOHN M. WALKER, JR.,

JOSEPH M. McLAUGHLIN,

ROBERT A. KATZMANN,

 Circuit Judges. 

______________________________________

HALIL DACAJ,

Petitioner, 

10-981-ag

 v. NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano,

New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Terri J. Scadron, Assistant

Director; Genevieve Holm, Attorney,

U.S. Department of Justice, Office

of Immigration Litigation,

Washington, D.C.
2

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 DISMISSED.

The Petitioner, Halil Dacaj, a native of Yugoslavia and

citizen of Serbia-Montenegro, seeks review of a February 22,

2010, decision of the BIA denying his motion to reopen his

removal proceedings. In re Halil Dacaj, No. A078 716 980

(B.I.A. Feb. 22, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

Although we generally review the BIA’s denial of a

motion to reopen for abuse of discretion, the BIA’s

determination as to whether it will exercise its sua sponte

authority to reopen is entirely discretionary and thus

beyond the scope of this Court’s jurisdiction. See Ali v.

Gonzales, 448 F.3d 515, 517-18 (2d Cir. 2006)(per curiam). 

However, in instances “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.” 
3

Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). 

Dacaj asserts that our decisions in Balachova v.

Mukasey, 547 F.3d 374 (2d Cir. 2008), and Weng v. Holder,

562 F.3d 510 (2d Cir. 2009), altered the standard for what

conduct would be considered “assistance in persecution” such

that the persecutor bar would apply. Dacaj argues that

remand is therefore necessary because the BIA declined to

sua sponte reopen his proceedings only because it

erroneously concluded that Balachova and Weng did not

represent a change in the law, and thus would not alter the

result in his case. However, Balachova merely cited our

prior decisions in Chao Qun Jiang v. BCIS, 520 F.3d 132 (2d

Cir. 2008), and Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93

(2d Cir. 2007), as well as the applicable statutory

provisions, see 8 U.S.C. §§ 1101(a)(42), 1231(b)(3), 

in discussing the factors previously employed by this Court

in determining whether the persecutor bar applies. See

Balachova, 547 F.3d at 384-85; see also Weng, 562 F.3d at

514 (citing Balachova). Accordingly, although Dacaj argues

that the Balachova and Weng decisions changed the definition

of “assistance in persecution,” the BIA correctly noted that

rather than change the law, those decisions merely applied

the existing standards to the specific facts in each case. 
4

See Balachova, 547 F.3d at 386-87 (remanding to the BIA to

consider whether a petitioner’s inaction may be considered

“assistance in persecution”); see also Weng, 562 F.3d at 515

(concluding that taken “as a whole,” a petitioner’s single

instance of passive assistance in persecution did not

subject her to the persecutor bar when she had also used her

position to help an individual escape). Because, as the BIA

correctly concluded, these decisions simply clarified and

applied existing law, we lack jurisdiction over the BIA’s

decision and remand is inappropriate. 

For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, the pending

motion for a stay of removal in this petition is DISMISSED

as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk