Krishan SINGH, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 473 F. App'x 60

SUMMARY ORDER Petitioner Krishan Singh, a native and citizen of India, seeks review of a June 19, 2009, order of the BIA denying his motion to reopen. In re Krishan Singh, No. [ AXXX XXX XXX ] (B.I.A. Jun. 19, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

Because Singh filed this, his fourth motion before the agency, more than five years after the BIA’s final order of removal, he was required to show an exemption from the time and number limitations on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C). Singh argues that the BIA erred in failing to equitably toll the time limits on his motion to reopen on the basis that he received ineffective assistance of counsel.

Because Singh did not raise the issue of ineffective assistance of counsel in his 2009 motion to the BIA (the denial of which is the subject of this petition for review), we are unable to address it and this petition is untimely for review of the BIA’s denial the last motion to reopen in which he raised the issue. See Stone v. INS, 514 U.S. 386, 405,115 S.Ct. 1537,131 L.Ed.2d 465 (1995) (explaining that courts should treat each petition for review as challenging only the BIA decision from which it was timely filed); Garcia-Martinez v.

Dep’t of Homeland Security, 448 F.3d 511, 513-14 (2d Cir.2006) (providing that, where a petitioner fails to raise an ineffective assistance of counsel claim with the BIA, the petitioner forfeits that claim in this Court). Singh raises other grounds for why his motion to reopen was excepted from the time and number limits on motions to reopen, but he raised those arguments for the first time in his reply brief. Accordingly, we decline to address them. See Yueqing Zhang v.

Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005) (providing that issues not sufficiently argued in the briefs are considered waived); Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.1993) (“Arguments may not be made for the first time in a reply brief.”). Because Singh’s motion to reopen was not filed within the ninety day limit on motions to reopen, or the one year limit on motions to reopen to apply for relief as a battered spouse, the BIA did not abuse its discretion in denying his motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (iv)(III).

Singh argues that the BIA should have exercised its sua sponte authority, see 8 C.F.R. § 1003.2(a), to grant his motion without regard to its timeliness. However, such a decision is “entirely discretionary,” and we lack jurisdiction to consider it. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006). Nor is there any indication that the BIA’s decision not to reopen sua sponte was based on any legal error, see Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009) (providing that we have jurisdiction to review the agency’s decision not to exercise its sua sponte authority where the BIA misperceived the legal background).

Finally, Singh was not deprived of due process. The BIA did not abuse its discretion in denying his motion to reopen as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i), (iv)(III). For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. Singh’s motion for a stay of removal is DENIED as moot.