Baez-Duran v. Garland

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JOSE RAMON BAEZ-DURAN, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.

No. 20-3227 NAC

United States Court of Appeals, Second Circuit

May 23, 2023

UNPUBLISHED OPINION

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 23^rd day of May, two thousand twenty-three.

For Petitioner: Reuben S. Kerben, Kew Gardens, NY.

For Respondent: Brian Boynton, Principal Deputy Assistant Attorney General; Kohsei Ugumori, Senior Litigation Counsel Nehal H. Kamani, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington DC.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, STEVEN J MENASHI, EUNICE C. LEE, Circuit Judges.

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.

Petitioner Jose Ramon Baez-Duran, a native and citizen of the Dominican Republic, seeks review of an August 26, 2020 decision of the BIA affirming an October 7, 2019 decision of an Immigration Judge ("IJ") denying his second motion to reopen. In re Jose Ramon Baez-Duran, No. A 095 421 281 (B.I.A. Aug. 26, 2020), aff'g No. A 095 421 281 (Immigr. Ct. Buffalo Oct. 7, 2019). We assume the parties' familiarity with the underlying facts and procedural history.

We have reviewed the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

Baez-Duran seeks review of his second motion to rescind or reopen, filed 17 years after being ordered removed in absentia. He does not allege that he meets the statutory requirements of a motion to rescind or reopen. See 8 U.S.C. § 1229a(b)(5)(C), (c)(7). He instead invokes the agency's regulatory authority to reopen sua sponte despite the time and number limitations on his motion. See 8 C.F.R. §§ 1003.2(a), 1000.23(b)(1) (versions in effect until January 15, 2021) . However, the agency's exercise of that authority is "entirely discretionary" and not subject to judicial review. Li Chen v. Garland, 43 F.4th 244, 252 (2d Cir. 2022) (quotation marks omitted).

There is one exception to the limit on our jurisdiction "[W]here 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); see also Li Chen, 43...