Sherpa v. Garland

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DAWA PHINJO SHERPA, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.

No. 21-6407 NAC

United States Court of Appeals, Second Circuit

January 23, 2024

UNPUBLISHED OPINION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 January, two thousand twenty-four.

FOR PETITIONER: Ramesh K. Shrestha

FOR RESPONDENT: Brian M. Boynton Attorney General; Jennifer P Levings, Assistant Director; James A. Hurley, Attorney Office of Immigration Litigation, United States Department of Justice

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, STEVEN J. MENASHI, ALISON J. NATHAN, 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 DENIED. Petitioner Dawa Phinjo Sherpa, a native and citizen of Nepal, seeks review of a June 29, 2021 decision of the BIA denying his motions to reconsider its dismissal of his appeal as untimely and to reopen his removal proceedings. In re Dawa Phinjo Sherpa, No. A213 078 013 (B.I.A June 29, 2021). We assume the parties' familiarity with the underlying facts and procedural history.

As an initial matter, we note that Sherpa has abandoned any challenge to the BIA's denial of his motion to reconsider by not addressing that ruling in his brief and thus we do not consider the BIA's decision as to that issue. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023). We review the BIA's denial of Sherpa's motion to reopen for abuse of discretion, though we review conclusions of law de novo. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Jiang v. Garland, 18 F.4th 730, 734 (2d Cir. 2021). "An abuse of discretion may be found . . . where the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Just., 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).

We conclude that the BIA did not abuse its discretion when it denied Sherpa's motion to reopen. Whether framed as a...