Villareal v. Garland

21-6534 Villareal v. Garland BIA A094 477 403 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. 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 25th day of May, two thousand twenty- three. PRESENT: JON O. NEWMAN, GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________ SELEDONIO VILLAREAL, Petitioner, v. 21-6534 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Wade M. German, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Sheri R. Glaser, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 Seledonio Villareal, a native and citizen of El Salvador, seeks review of a September 2, 2021 decision of the BIA denying his motion to reopen. In re Seledonio Villareal, No. A 094 477 403 (B.I.A. Sept. 2, 2021). We assume the parties’ familiarity with the underlying facts and procedural history. A motion to reopen ordinarily must be filed within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Villareal’s January 2019 motion was untimely because the BIA affirmed his removal order in May 2017. Nor does his alleged eligibility for a visa or to apply to adjust to lawful permanent resident status implicate an exception to the deadline. See 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv) (listing exceptions); 8 C.F.R. 2 § 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009) (“[U]ntimely motions to reopen to pursue an application for adjustment of status, even for cases that do not involve an arriving alien, do not fall within any of the statutory or regulatory exceptions to the time limits for motions to reopen . . . and will ordinarily be denied.” (internal quotation marks omitted)). Absent an exception to the filing deadline, an untimely motion can “only be considered upon exercise of the Agency’s sua sponte authority” to reopen pursuant to 8 C.F.R. § 1003.2(a). Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We lack jurisdiction to review the BIA’s “entirely discretionary” decision not to exercise its authority reopen …

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