Arina v. Mukasey ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-2155
HANNY HERLY ARINA,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Andre R. Sobolelvsky on brief for petitioner.
Surell Brady on motion for summary affirmance for
respondent.
January 12, 2009
Per Curiam. Petitioner, a citizen of Indonesia, whose
applications for asylum, withholding of removal, and relief under
the Convention Against Torture ("CAT") were denied, has petitioned
for review of the Board of Immigration Appeals' denial of his
motion for reconsideration and has moved for a stay of his removal
pending such review. Respondent has opposed the motion for a stay
and has cross-moved for summary disposition. For the reasons
discussed below, after careful review of the entire record and the
parties' respective motions, we summarily deny the petition,
thereby mooting the motion for a stay of removal.
Because petitioner did not file a timely appeal from the
November 30, 2007 decision of the Board of Immigration Appeals
("BIA") dismissing his appeal from the decision of the Immigration
Judge ("IJ") denying his application for asylum, withholding of
removal, and CAT relief, we have no jurisdiction to review that
decision. Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003). Nor
did the motion to reconsider toll the time for filing a petition
for review of the BIA's original decision. Id.Although the BIA's denial of a motion to reconsider is
separately appealable, id., such a denial is reviewable only for an
abuse of discretion, id. 293, "meaning that it must be upheld
unless it 'was made without a 'rational explanation, inexplicably
departed from established policies, or rested on an impermissible
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basis.'" Nascimento v. INS, 274 F.3d 26, 28 (1st Cir. 2001)
(quoting Leblanc v. INS, 715 F.2d 685, 693 (1st Cir. 1983)).
No such abuse occurred here. The BIA's explanation for
denying reconsideration--that "the motion merely restate[d]
arguments presented before the Immigration Judge and on appeal
. . . and presented no persuasive evidence or argument that [the
BIA] committed error of law or fact in dismissing his appeal"--is
rational and consistent with BIA policy. See 8 C.F.R. § 1003.2(b)
(requiring that a motion to reconsider specify errors of fact or
law in the BIA's original decision and be supported by pertinent
authority). Petitioner does not allege that the BIA's original
decision rested on an impermissible basis, such as petitioner's
race. Zhang, 348 F.3d at 293. The order denying reconsideration
also accurately characterizes the motion as simply restating
arguments previously made and failing to make any persuasive claims
of error.
Consequently, the BIA did not abuse its discretion in
denying the motion for reconsideration, the only order that we have
jurisdiction to review. Accordingly, the petition for review is
summarily denied. 1st Cir. R. 27.0(c). Petitioner's motion for a
stay of removal and respondent's motion to stay briefing are denied
as moot.
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