Opinion
No. 09-2763-ag.
July 8, 2011.
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.
Genet Getachew, Brooklyn, NY, for Petitioner.
Tony West, Assistant Attorney General; Leslie McKay, Assistant Director; Jane T. Schaffner, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JOSÉ A. CABRANES, REENA RAGGI and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Petitioner Paramjit Singh, a native and citizen of India, seeks review of a June 1, 2009, decision of the BIA, denying his motion to remand and affirming the July 26, 2007, decision of Immigration Judge ("IJ") Annette S. Elstein, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Paramjit Singh, No. A075 917 719 (B.I.A. June 1, 2009), aff'g No. A075 917 719 (Immig. Ct. N.Y. City July 26, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We previously granted in part the Government's motion for summary disposition to the extent Singh challenged the denial of withholding of removal. Because Singh does not challenge either the agency's pretermission of his untimely asylum application or its denial of his CAT claim, the only issue for review is Singh's challenge to the BIA's denial of his motion to remand. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).
We review the BIA's denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 157 (2d Cir. 2005). The BIA did not abuse its discretion in denying Singh's motion to remand, based on his approved I-130 visa petition, because the IJ lacks jurisdiction to adjudicate his application for adjustment of status. See Brito v. Mukasey, 521 F.3d 160, 166-68 (2d Cir. 2008).
Singh relies on this Court's decision in Sheng Gao Ni v. BIA, 520 F.3d 125, 130-31 (2d Cir. 2008), to argue that when an applicant files a timely motion to reopen proceedings to seek adjustment of status, it is appropriate to presume that he seeks "to press [his] adjustment application[] before the United States Citizenship and Immigration Services" ("USCIS") rather than the IJ, such that the BIA abuses its discretion in denying such a motion to reopen on jurisdictional grounds. However, whereas the Sheng Gao Ni petitioners specifically argued to the BIA that they intended to pursue their adjustment application before the USCIS, Singh explicitly moved for reopening so that the IJ could conduct a new hearing. See id. at 130. As Singh conceded, the IJ could not have taken any action to adjudicate his adjustment of status application. See Brito, 521 F.3d at 166. Furthermore, because the BIA's decision responded to the relief Singh sought — to reopen his proceedings for a new hearing before the IJ — the BIA did not abuse its discretion in denying Singh's motion on jurisdictional grounds. See Ni, 520 F.3d at 130-31; see also Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (explaining that an abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary and capricious manner" (internal citations omitted)).
For the foregoing reasons, the petition for review is DENIED. 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. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).