Mahmood v. Holder

SUMMARY ORDER Petitioner, a native and citizen of Pakistan, seeks review of a May 27, 2010 order of the BIA denying his motion to reconsider the BIA’s December 10, 2009 order, following remand from this Court, declining to exercise its sua sponte authority to reopen removal proceedings. See IN RE TAHIR MOHAMMAD MAHMOOD, No. A095 961 997, 2010 WL 2890805 (B.I.A. May 27, 2010); see also Mahmood v. Holder, 570 F.3d 466 (2d Cir.2009); IN RE TAHIR MOHAMMAD MAHMOOD, No. A095 961 997, 2009 WL 5252795 (B.I.A. Dec. 10, 2009). We assume the parties’ familiarity with the underlying facts and procedural history, which we reference only as necessary to explain our decision to dismiss the petition for review. As an initial matter, our review is limited to the BIA’s May 2010 denial of reconsideration, as Mahmood’s petition for review is timely filed only as to that order. See Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir.2007) (concluding that where petition is filed only to review BIA’s denial of reopening or reconsideration, reviewing court’s jurisdiction is limited to decision not to reopen or reconsider); see also Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (concluding that BIA’s denial of appeal and denial of reconsideration are two separate orders from which separate petitions of review must be taken). Accordingly, to the extent Mahmood’s brief challenges the BIA’s December 2009 determination that his motion to reopen was untimely, we lack jurisdiction to consider these arguments, which Mahmood did not raise in his motion for reconsideration. Moreover, to the extent that Mahmood’s brief may be construed to argue that he or his wife will face persecution if he were removed to Pakistan, we similarly do not have jurisdiction. Mah-mood does not appear to have raised this claim before the agency at all, let alone in his motion for reconsideration. The Government maintains that because Mahmood’s motion for reconsideration challenged only the exercise of the BIA’s sua sponte authority to reopen the removal proceedings — a determination unreviewable by this court — we lack jurisdiction to review the remainder of his petition. 1 We agree. As we noted in our decision resolving Mahmood’s first petition for review, “we are without jurisdiction to review the Agency’s failure to reopen removal proceedings sua sponte. ” Mahmood v. Holder, 570 F.3d at 469 (citing Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006)). In that decision, we remanded Mahmood’s case to the agency to consider, in light of the Supreme Court’s decision in Dada v. Mu- *57 kasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), “whether it would still decline to exercise its sua sponte authority to reopen Mahmood’s removal proceedings.” Mahmood v. Holder, 570 F.3d at 471. In so doing, we expressly recognized that, on remand, the agency could “choose not to exercise its sua sponte authority,” and “such a decision would be unreviewable by us.” Id. That is precisely what happened. For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Footnotes [1] The BIA sua sponte construed Mahmood's motion for reconsideration as a second motion to reopen, insofar as the motion sought to introduce an affidavit from Mahmood's wife. The BIA denied this construed motion ta reopen as number-barred. [CAR 3] See 8 C.F.R. § 1003.2(c). Mahmood’s brief does not challenge this determination, and we do not consider it further.