Opinion
No. 08-4295-ag.
March 4, 2009.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Viney K. Gupta, Orange, California.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; Ernesto H. Molina, Jr., Assistant Director; Joanna L. Watson, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, District of Columbia.
PRESENT: HON. GUIDO CALABRESI, HON. ROBERT D. SACK, HON. ROBERT A. KATZMANN, Circuit Judges.
Petitioner Harmeet Singh, a native and citizen of India, seeks review of the July 31, 2008 order of the BIA denying his seventh motion to reopen. In re Harmeet Singh, No. A76 099 191 (B.I.A. July 31, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). As a preliminary matter, to the extent that Petitioner attempts to challenge the merits of the underlying denial of his asylum application, Petitioner is again reminded that such decision is not properly before this Court. Only the BIA's July 2008 decision is before us as that is the only decision from which a petition for review was timely filed. See 8 U.S.C. § 1252(b)(1).
This is Petitioner's fourth petition for review, and he has filed seven largely duplicative motions to reopen before the agency. Petitioner is warned that the continued filing of duplicative and meritless petitions will result in the imposition of a "leave to file" sanction, under which Petitioner will be required to obtain this Court's permission prior to filing any further submissions in this Court. See In re Martin-Trigona, 9 F.3d 226, 229 (2d Cir. 1993).
While Petitioner makes an ineffective assistance of counsel argument in his brief, he made no such argument in his motion. Thus, this argument is precluded by Petitioner's failure to exhaust the claim below. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per curiam); see also Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
The BIA properly denied Petitioner's motion to reopen as untimely and number barred where it was filed more than ninety days after the final order of removal was issued in his case and was his seventh motion to reopen. See 8 C.F.R. § 1003.2(c)(2) (an alien may file only one motion to reopen and it must be filed within ninety days of the final administrative decision in the proceeding sought to be reopened). Petitioner's argument that the BIA's denial of his motion to reopen was a denial of his due process rights is unavailing. Petitioner has no due process right to the discretionary grant of adjustment of status. See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008) (holding that an alien has no due process right to a discretionary grant of asylum). Even if he did, he will not be heard to argue that he has received inadequate process when the BIA has adjudicated six prior motions. Id. In its most recent decision, the BIA properly found that the only way it could reopen Petitioner's proceedings was by exercising its sua sponte authority. We lack jurisdiction to consider any challenge to its refusal to do so. See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.