20-471 (L)

Khan v. Garland

BIA

Ruehle, IJ

A206 652 257

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 Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 7th day of July, two thousand twenty-two.

PRESENT:

DEBRA ANN LIVINGSON,

Chief Judge,

JON O. NEWMAN,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

ESFAK AHMED KHAN,

Petitioner,

v. 20-471 (L), 

20-2576 (Con)

NAC

MERRICK B. GARLAND, UNITED

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Anne E. Doebler, Esq., Buffalo,

NY.
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FOR RESPONDENT: Brian Boyton, Acting Assistant

Attorney General; Zoe J. Heller, 

Senior Litigation Counsel; Rodolfo 

D. Saenz, Trial Attorney, Office 

of Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of 

Board of Immigration Appeals (“BIA”) decisions, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petitions for review 

are DISMISSED.

Petitioner Esfak Ahmed Khan, a native and citizen of

Bangladesh, seeks review of a January 9, 2020, decision of 

the BIA denying Khan’s motion to remand and affirming a 

February 28, 2018, decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and protection under 

the Convention Against Torture (“CAT”), In re Esfak Ahmed 

Khan, No. A206 652 257 (B.I.A. Jan. 9, 2020), aff’g No. A206

652 257 (Immig. Ct. Buffalo Feb. 28, 2018), and a July 30, 

2020, decision of the BIA denying Khan’s subsequent motion to 

reopen, No. A206 652 257 (B.I.A. July 30, 2020). We assume 

the parties’ familiarity with the underlying facts and

procedural history.

We review findings of fact for substantial evidence and 

questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); 
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Yanqin Weng v. Holder, 562 F.3d 510, 513, 516 (2d Cir. 2009). 

We dismiss the lead petition because Khan did not raise 

any challenge to the BIA’s January 2020 decision in his brief 

and failed to exhaust any argument as to asylum, withholding 

of removal, and protection under the CAT before the BIA. See 

Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (holding 

that petitioner’s failure to exhaust arguments before the BIA 

deprives this court of jurisdiction to review); see also 

Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d 

Cir. 2005) (finding “single conclusory sentence” constitutes 

waiver); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 

1998) (“Issues not sufficiently argued in the briefs are 

considered waived and normally will not be addressed on 

appeal.”). 

We likewise dismiss the consolidated petition. We 

review the denial of a motion to reopen for abuse of 

discretion, see Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 

F.3d 83, 89–90, 93 (2d Cir. 2001), and we are “mindful that 

motions to reopen ‘are disfavored,’” Ali v. Gonzales, 448 

F.3d 515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 

U.S. 314, 322–23 (1992)). 
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We lack jurisdiction to consider the BIA’s denial of 

Khan’s motion to reopen. The agency’s decision whether to 

exercise its sua sponte authority under 8 C.F.R. § 1003.2(a)

is “entirely discretionary” and not subject to judicial 

review. Ali, 448 F.3d at 518. The limited exception, under 

which we will remand if the BIA “misperceived the legal 

background and thought, incorrectly, that a reopening would 

necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d 

Cir. 2009), does not apply here. 

The BIA also denied reopening on the basis that, 

ultimately, it would not grant Khan adjustment of status as 

a matter of discretion. We again lack jurisdiction to review 

this determination. The agency relied on INS v. Abudu, 485 

U.S. 94 (1988), which held, in the similar context of motions 

to reopen, that in certain discretionary matters the BIA may 

“leap ahead . . . over the two threshold concerns (prima 

facie case and new evidence/reasonable explanation), and 

simply determine that even if they were met, the movant would 

not be entitled to the discretionary grant of relief.” 485 

U.S. at 105; see also Li Yong Cao v. U.S. Dep’t of Justice, 

421 F.3d 149, 156 (2d Cir. 2005) (“A motion to remand that 
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relies on newly available evidence is held to the substantive

requirements of a motion to reopen.”). “Abudu stands for the 

proposition that . . . the BIA may deny a motion to reopen if 

it determines that it would ultimately exercise discretion to 

deny that relief,” and “[w]here a denial is based on the BIA’s 

‘merits-deciding’ analysis of the alien’s entitlement to the 

ultimate relief sought, the denial may properly be said to be 

a decision ‘under’ the statutory provision providing that 

ultimate relief.” Mariuta v. Gonzales, 411 F.3d 361, 364–65 

(2d Cir. 2005). Thus, where the BIA denies a motion to remand 

to seek adjustment of status because it would ultimately deny 

the relief as a matter of discretion, the jurisdictional 

limitation in 8 U.S.C. § 1252(a)(2)(B) attaches because the 

BIA is making a discretionary determination as to whether an 

individual receives adjustment of status under 8 U.S.C. 

§ 1255. Mariuta, 411 F.3d at 365–66. We lack jurisdiction 

to review such a determination absent a constitutional claim 

or question of law. 8 U.S.C. § 1252(a)(2)(D). 

We find Khan’s arguments insufficient to invoke our 

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) because they 

amount to disputes with the BIA’s rationale for its 
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discretionary choices and the weight afforded certain 

factors, which we lack jurisdiction to review. Xiao Ji Chen 

v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006). 

Khan’s constitutional claim that his due process rights were 

violated similarly fails to invoke our jurisdiction because 

he has not shown he was deprived of a full and fair 

opportunity to present his claim. See Li Hua Lin v. U.S. 

Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006) (stating 

that due process requires showing applicant was “denied 

. . . a full and fair opportunity to present [his] claims.”); 

cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156–57 (2d Cir. 2008) 

(concluding that noncitizens do not have a “liberty or 

property interest” in discretionary relief). 

For the foregoing reasons, the petitions for review are

DISMISSED. All pending motions and applications are DENIED

and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court