10-2351-ag

Mahmood v. Holder

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 21st day of December, two thousand eleven.

PRESENT: GUIDO CALABRESI,

REENA RAGGI,

RAYMOND J. LOHIER, JR.

Circuit Judges.

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TAHIR MOHAMMAD MAHMOOD, 

AKA Muhammad Tahir Mahmood, 

AKA Muhammad Tahir Hammoud,

Petitioner, 

 v. 10-2351-ag

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

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FOR PETITIONER: Tahir Mohammad Mahmood, pro se, Jamaica, New

York.

FOR RESPONDENT: Margot L. Nadel, Trial Attorney, M. Jocelyn Lopez

Wright, Senior Litigation Counsel, Office of Immigration

Litigation; Tony West, Assistant Attorney General,

United States Department of Justice, Washington, D.C.

1
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 for lack of jurisdiction.

Petitioner, a native and citizen of Pakistan, seeks review of a May 27, 2010 order of

the BIA denying his motion to reconsider the BIA’s December 10, 2009 order, following

remand from this Court, declining to exercise its sua sponte authority to reopen removal

proceedings. See In re Tahir Mohammad Mahmood, No. A095 961 997 (B.I.A. May 27,

2010); see also Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009); In re Tahir Mohammad

Mahmood, No. A095 961 997 (B.I.A. Dec. 10, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history, which we reference only as necessary to

explain our decision to dismiss the petition for review.

As an initial matter, our review is limited to the BIA’s May 2010 denial of

reconsideration, as Mahmood’s petition for review is timely filed only as to that order. See

Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir. 2007) (concluding that where petition is filed

only to review BIA’s denial of reopening or reconsideration, reviewing court’s jurisdiction

is limited to decision not to reopen or reconsider); see also Stone v. INS, 514 U.S. 386, 405

(1995) (concluding that BIA’s denial of appeal and denial of reconsideration are two separate

orders from which separate petitions of review must be taken). Accordingly, to the extent

Mahmood’s brief challenges the BIA’s December 2009 determination that his motion to

reopen was untimely, we lack jurisdiction to consider these arguments, which Mahmood did

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not raise in his motion for reconsideration. Moreover, to the extent that Mahmood’s brief

may be construed to argue that he or his wife will face persecution if he were removed to

Pakistan, we similarly do not have jurisdiction. Mahmood does not appear to have raised this

claim before the agency at all, let alone in his motion for reconsideration. 

The Government maintains that because Mahmood’s motion for reconsideration

challenged only the exercise of the BIA’s sua sponte authority to reopen the removal

proceedings—a determination unreviewable by this court—we lack jurisdiction to review the

remainder of his petition.1

 We agree. 

As we noted in our decision resolving Mahmood’s first petition for review, “we are

without jurisdiction to review the Agency’s failure to reopen removal proceedings sua

sponte.” Mahmood v. Holder, 570 F.3d at 469 (citing Ali v. Gonzales, 448 F.3d 515, 518

(2d Cir. 2006)). In that decision, we remanded Mahmood’s case to the agency to consider,

in light of the Supreme Court’s decision in Dada v. Mukasey, 554 U.S. 1 (2008), “whether

it would still decline to exercise its sua sponte authority to reopen Mahmood’s removal

proceedings.” Mahmood v. Holder, 570 F.3d at 471. In so doing, we expressly recognized

that, on remand, the agency could “choose not to exercise itssua sponte authority,” and “such

a decision would be unreviewable by us.” Id. That is precisely what happened.

1

 The BIA sua sponte construed Mahmood’s motion for reconsideration as a second

motion to reopen, insofar as the motion sought to introduce an affidavit from Mahmood’s

wife. The BIA denied this construed motion to reopen as number-barred. [CAR 3] See 8

C.F.R. § 1003.2(c). Mahmood’s brief does not challenge this determination, and we do not

consider it further.

3
For the foregoing reasons, the petition for review is DISMISSED for lack of

jurisdiction. 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.

FOR THE COURT: 

CATHERINE O’HAGAN WOLFE, Clerk of Court

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