MCPHERSON v. WILKINSON (2021)

SUMMARY ORDER

Petitioner Delroy Horace McPherson, a native and citizen of Jamaica, seeks review of a February 23, 2018, decision of the BIA denying his fifth motion to reopen his removal proceedings. In re Delroy Horace McPherson, No. A XXX XX4 608 (B.I.A. Feb. 23, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We have reviewed the BIA's denial of the motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We find no abuse of discretion because an alien seeking to reopen proceedings may file only one motion to reopen no later than 90 days after the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). McPherson's 2017 motion was untimely and number barred because his removal order was final in 2014 and this was his fifth motion to reopen. McPherson's request to reopen to apply for adjustment of status does not implicate any exception to the time and number limitations. See Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009); see also 8 U.S.C. § 1229a(c)(7)(C)(ii) (asylum exception); 8 C.F.R. § 1003.2(c)(3) (listing exceptions). McPherson's motion did not identify grounds for equitable tolling based on ineffective assistance of counsel. Cf. Rashid v. Mukasey, 533 F.3d 127, 130–31 (2d Cir. 2008) (recognizing equitable exception to time and number limits based on ineffective assistance, but requiring showing that counsel's actions were unreasonable and caused prejudice and that movant acted diligently in raising claim).

Absent an exception to the time and number limitations, the only basis for reopening was an exercise of the BIA's authority to reopen sua sponte. That authority is “entirely discretionary,” and we lack jurisdiction to review it absent a misperception of the law, which did not occur here. Ali, 448 F.3d at 518; Mahmood v. Holder, 570 F.3d 466, 471 (2d Cir. 2009).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED.