Filed: Sep. 30, 2010
Latest Update: Feb. 21, 2020
Summary: 09-3662-ag Abochoayra v. Holder BIA A075 924 898 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 NOTATI
Summary: 09-3662-ag Abochoayra v. Holder BIA A075 924 898 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 NOTATIO..
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09-3662-ag
Abochoayra v. Holder
BIA
A075 924 898
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of September, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 MOHAMED SALAME ABOCHOAYRA,
15 Petitioner,
16 09-3662-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, DEPARTMENT OF
21 HOMELAND SECURITY,
22 Respondents.
23 ______________________________________
24
25 FOR PETITIONER: Amy N. Gell, Gell & Gell, New York,
26 New York.
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General, Civil Division; Blair T.
30 O’Connor, Assistant Director; Don G.
31 Scroggin, Trial Attorney, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 Washington, D.C.
35
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 The Petitioner, Mohamed Salame Abochoayra, a native and
6 citizen of Egypt, seeks review of an August 24, 2009, order
7 of the BIA denying his motion to reopen his removal
8 proceedings. In re Mohamed Salame Abochoayra, No. A 075 924
9 898 (B.I.A. Aug. 24, 2009). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
14 Cir. 2005) (per curiam). Here, the BIA did not abuse its
15 discretion in denying Abochoayra’s motion to reopen as
16 untimely and number-barred. It was his second motion, and
17 it was filed over three years after the BIA issued its final
18 order of removal. See 8 C.F.R. § 1003.2(c)(2).
19 Abochoayra argued that country conditions had changed
20 regarding the treatment of Muslim men married to non-Muslims
21 in Egypt. The time and numerical limitations on motions to
22 reopen shall not apply to motions based on “changed
23 circumstances in the country of nationality . . . to which
24 deportation has been ordered, if such evidence is material
2
1 and was not available and could not have been discovered or
2 presented at the previous hearing; [8 C.F.R. § 1003.2(c)(2)]
3 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
4 2008); see also Siewe v. Gonzales,
480 F.3d 160, 167-168 (2d
5 Cir. 2007). However, we agree with the BIA that the
6 Petitioner failed to demonstrate such a change had occurred
7 in that country.
8 Abochoayra additionally sought reopening to apply for
9 adjustment of status. However, eligibility for adjustment
10 of status is not an exception to the applicable time
11 limitation on motions to reopen. See 8 U.S.C.
12 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii); see also
13 Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009).
14 Therefore, to the extent Abochoayra sought reopening to
15 pursue such relief, he was necessarily invoking the BIA’s
16 authority to reopen his proceedings sua sponte. See Mahmood
17 v. Holder,
570 F.3d 466, 469 (2d Cir. 2009); 8 C.F.R. §
18 1003.2(a). The BIA’s determination as to whether it will
19 exercise its sua sponte authority is entirely discretionary
20 and thus beyond the scope of our jurisdiction. See Ali v.
21 Gonzales,
448 F.3d 515, 517 (2d Cir. 2006). True, “where
22 the Agency may have declined to exercise its sua sponte
23 authority because it misperceived the legal background and
24 thought, incorrectly, that a reopening would necessarily
3
1 fail, remand to the Agency for reconsideration in view of
2 the correct law is appropriate.” Mahmood 570 F.3d at 469.
3 However, remand is inappropriate in this case because, as
4 the BIA observed, Abochoayra’s priority date was not
5 current. See
Ali, 448 F.3d at 517. Contrary to
6 Abochoayra’s argument in this Court, his priority date was
7 not current at the time his motion to reopen was filed or
8 when the BIA disposed of the motion. Compare June 2009 Visa
9 Bulletin, http://www.travel.state.gov/visa/bulletin/
10 bulletin_4497.html (last visited Sept. 21, 2010) (indicating
11 that visas for skilled workers (third preference) were
12 unavailable) with August 2009 Visa Bulletin,
13 http://www.travel.state.gov/visa/bulletin/bulletin_4539.
14 html (last visited Sept. 21,2010) (same).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
21 Federal Rule of Appellate Procedure 34(a)(2), and Second
22 Circuit Local Rule 34.1(b).
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
4
