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United States Court of Appeals, Second Circuit.

Agron KRASNIQI, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: October 28, 2019

PRESENT: ROBERT A. KATZMANN, Chief Judge, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, Circuit Judges. FOR PETITIONER: Charles Christophe, New York, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Mary Jane Candaux, Assistant Director; Remi da Rocha-Afodu, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). An alien may file one motion to reopen no later than 90 days after the final administrative decision is rendered. See 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Krasniqi’s August 2017 motion was time and number barred because it was his third motion to reopen, filed more than 14 years after the BIA’s May 2003 decision dismissing his appeal of his removal order. While there are limited exceptions to the 90-day time limitation, Krasniqi does not assert that any of them apply. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008); 8 C.F.R. § 1003.2(c)(3). His eligibility to adjust status based on his marriage does not implicate any exception. See Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009).

Even when a motion to reopen is untimely, the BIA has regulatory authority to reopen sua sponte. See 8 C.F.R. § 1003.2(a). The agency invokes its sua sponte authority only in “exceptional situations,” not as a “general cure for filing defects or to otherwise circumvent the regulations, where enforcing them may result in hardship.” In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). We lack jurisdiction to review a decision declining to reopen sua sponte because it is “entirely discretionary.” Ali, 448 F.3d at 518. There is only one exception, “where the [BIA] 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 [BIA] for reconsideration in view of the correct law is appropriate.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We find no basis for remand here because the BIA did not conclude that reopening would necessarily fail or address Krasniqi’s eligibility for relief. The BIA determined only that there was no exceptional situation that warranted reopening. Accordingly, we lack jurisdiction to review further the BIA’s denial of reopening. See Ali, 448 F.3d at 518.

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

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