Fajardo v. Gonzales ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 15, 2005
TENTH CIRCUIT
Clerk of Court
JESUS FAJARDO,
Petitioner, No. 05-9516
v. (BIA No. A70-688-340)
ALBERTO GONZALES, Attorney (Petition for Review)
General,
Respondent.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Petitioner is an alien from El Salvador. In 1997, an immigration law judge
(“ILJ”) found that he should be deported, denied his applications for asylum and
withholding of deportation, and granted him voluntary departure. Petitioner
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appealed the ILJ’s decision to the Board of Immigration Appeals (“BIA”) which
dismissed his appeal on August 10, 1999. On July 19, 2000, Petitioner filed a
motion to reopen his deportation proceedings which the BIA also denied.
Subsequently, On February 9, 2005, Petitioner filed a second motion to reopen
with the BIA. The BIA denied that motion as being numerically barred by its
regulations. Petitioner now files the instant petition for a review of the BIA’s
denial of his second motion to reopen.
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Infanzon v. Ashcroft, 386 F.3d 1335, 1362 (10th Cir. 2004). The
Board “abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Id. (internal quotation marks
and citation omitted). Generally, the BIA has “broad discretion” to grant or deny
a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323 (1992) (quoting INS v.
Rios-Pineda, 471 U.S. 444, 449 (1985)).
There is nothing in this case indicating that the BIA abused its discretion
when it denied Petitioner’s second motion to reopen. In its order, the BIA
explained, “[T]he motion to reopen exceeds the numerical limitations for motions
to reopen and will be denied.” A.R. at 2; see 8 C.F.R. § 1003.2(c)(2). The order
further explained that the BIA is generally limited to reviewing only one motion
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to reopen, except in certain circumstances not present in Petitioner’s case.
Based on our review of the facts and relevant law surrounding this issue,
we determine that the BIA did not abuse its discretion when it denied Petitioner’s
second motion to reopen.
Accordingly, the BIA’s decision is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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