Dacaj v. Holder

417 F. App'x 90

• Court: Court of Appeals for the Second Circuit
• Decided: April 4, 2011
• Docket: 10-981-ag
• Status: Unpublished

Opinion

SUMMARY ORDER

The Petitioner, Halil Dacaj, a native of Yugoslavia and citizen of Serbia-Montenegro, seeks review of a February 22, 2010, decision of the BIA denying his motion to reopen his removal proceedings. In re Halil Dacaj, No. A078 716 980 (B.I.A. Feb. 22, 2010). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Although we generally review the BIA’s denial of a motion to reopen for abuse of discretion, the BIA’s determination as to whether it will exercise its sua sponte authority to reopen is entirely discretionary and thus beyond the scope of this Court’s jurisdiction. See Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006)(per curiam). However, in instances “where the Agency 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 Agency for reconsideration in view of the correct law is appropriate.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009).

Dacaj asserts that our decisions in Balachova v. Mukasey, 547 F.3d 374 (2d Cir. 2008), and Weng v. Holder, 562 F.3d 510 (2d Cir.2009), altered the standard for what conduct would be considered “assistance in persecution” such that the persecutor bar would apply. Dacaj argues that remand is therefore necessary because the BIA declined to sua sponte reopen his pi’oceedings only because it erroneously concluded that Balachova and Weng did not represent a change in the law, and thus would not alter the result in his case. However, Balachova merely cited our pri- or decisions in Chao Qun Jiang v. BCIS, 520 F.3d 132 (2d Cir.2008), and Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93 (2d Cir.2007), as well as the applicable statutory provisions, see 8 U.S.C. §§ 1101(a)(42), 1231(b)(3), in discussing the factors previously employed by this Court in determining whether the persecutor bar applies. See Balachova, 547 F.3d at 384-85; see also Weng, 562 F.3d at 514 (citing Balachova). Accordingly, although Dacaj argues that the Balachova and Weng decisions changed the definition of “assistance in persecution,” the BIA correctly noted that rather than change the law, those decisions merely applied the existing standards to the specific facts in each case. See Balachova, 547 F.3d at 386-87 (remanding to the BIA to consider whether a petitioner’s inaction may be considered “assistance in persecution”); see also Weng, 562 F.3d at 515 (concluding that taken “as a whole,” a petitioner’s single instance of passive assistance in persecution did not subject her to the persecutor bar when she had also used her position to help an individual escape). Because, as the BIA correctly concluded, these decisions simply clarified and applied existing law, we lack jurisdiction over the BIA’s decision and remand is inappropriate.

For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.