Full Opinion

24-2664 Chowdhury v. Blanche BIA A072 564 782 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 12th day of November, two thousand twenty-six. PRESENT: STEVEN J. MENASHI, EUNICE C. LEE, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________ HUMAYUN KABIR CHOWDHURY, Petitioner, v. 24-2664 NAC TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Judith L. Wood, Esq., Los Angeles, CA. FOR RESPONDENT: Brett A. Shumate, Assistant Attorney General; Margot L. Carter, Senior Litigation Counsel; Virginia L. Gordon, Trial Attorney, Criminal Immigration Team, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC. 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 DISMISSED. Petitioner Humayun Kabir Chowdhury seeks review of a September 13, 2024 decision of the BIA denying his motion to reopen his removal proceedings. In re Humayun Kabir Chowdhury, No. A072-564-782 (B.I.A. Sept. 13, 2024). We assume the parties’ familiarity with the underlying facts and procedural history. We generally review the BIA’s denial of a motion to reopen for abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). There is no dispute that Chowdhury’s 2024 motion to reopen was untimely and number- barred because he filed it more than 21 years after his removal order became final and after prior motions were denied. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (allowing one motion filed within 90 days of the final administrative order). And he moved to reopen to apply for adjustment of status with a waiver of inadmissibility, so his motion did not fall into a statutory or regulatory exception to the deadline. See 8 U.S.C. § 1229a(c)(7)(C) (listing the exceptions); 8 C.F.R. § 1003.2(c)(3) (same); Matter of Yauri, 25 I. & N. Dec. 103, 105 (B.I.A. 2009). The only remaining basis for reopening was the BIA’s discretionary authority to reopen under 8 C.F.R. § 1003.2(a). We lack jurisdiction to review that decision because “a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review.” Li Chen v. Garland, 43 F.4th 244, 252 (2d Cir. 2022) (quoting Ali v. Gonzales, 448 F.3d 2 515, 518 (2d Cir. 2006)). We have “created an exception to the bar on our jurisdiction ‘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.’” Id. at 253 (quoting Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009)). In this case, the BIA did not misperceive the law in concluding that Chowdhury was not prima facie eligible for a waiver of inadmissibility or adjustment of status. “The status of an alien who was … paroled into the United States … may be adjusted … to that of an alien lawfully admitted for permanent residence if … the alien … is admissible to the United States for permanent residence, and … an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a). An applicant is inadmissible, and therefore not eligible to adjust, if he “by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States.” Id. § 1182(a)(6)(C)(i). The agency may in its discretion waive inadmissibility on this basis “in the case of an immigrant who is the spouse, son, or daughter of a United States citizen … if it is established … that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.” Id. § 1182(i)(1). Because Chowdhury sought to adjust as the parent of a U.S. citizen, he is not eligible to adjust under the current statute. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the agency was permitted to waive inadmissibility based on fraud in seeking admission “in the case of an immigrant who is the spouse, parent, or son or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence.” Id. § 1182(i)(1) (effective before Sept. 30, 1996) (emphasis added); see also IIRIRA, Pub. L. No. 104-208, div. C, 110 Stat. 3009 (Sept. 30, 1996). There is no merit to Chowdhury’s argument that the 1996 amendment removing the eligibility of a parent of a U.S. citizen for a fraud waiver is impermissibly retroactive in his case. 3 “[C]ourts read laws as prospective in application unless Congress has unambiguously instructed retroactivity.” Vartelas v. Holder, 566 U.S. 257, 266 (2012) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 263 (1994)). A law has an impermissible retroactive effect if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Landgraf, 511 U.S. at 269 (quoting Soc’y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814)). “[T]he court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269-70. As the BIA concluded, the amendment enacted through IIRIRA did not create a new disability with respect to a completed event because the 1999 birth of Chowdhury’s U.S.-citizen son occurred well after the 1996 enactment of IIRIRA. Because Chowdhury was not eligible for a waiver of inadmissibility prior to IIRIRA, given that he did not have a U.S.-citizen child at the time and thus did not have a qualifying relative as required for a waiver, the passage of IIRIRA did not take away or impair a vested right or attach a new disability. Contrary to his contention, Chowdhury did not show that he detrimentally relied on the availability of a fraud waiver at the time he admitted to fraud. Cf. Vartelas, 566 U.S. at 273-74 (“Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively.”). Chowdhury purportedly admitted to using a fraudulent passport in 1992 in order to be paroled into the United States to apply for asylum—not, as he now suggests, in reliance on the potential availability of a fraud waiver should he have a U.S.-citizen child at some point in the future. In addition, Chowdhury did not establish his prima facie eligibility to adjust to lawful permanent resident status because, as the BIA noted, he did not show that he was the beneficiary of an approved visa petition. See 8 U.S.C. § 1255(a); 4 Drax v. Reno, 338 F.3d 98, 113-14 (2d Cir. 2003) (discussing the requirements for an adjustment of status). For the foregoing reasons, the petition for review is DISMISSED. All pending motions and applications are DENIED and stays VACATED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5