Albanil v. Holder , 481 F. App'x 25 ( 2012 )

11-1168-ag
Albanil v. Holder
BIA
A027 932 461
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of September, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 MARIA DEL CARMEN ALBANIL,
14 Petitioner,
15
16 v. 11-1168-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Lawrence Spivak, Jackson Heights,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Daniel E. Goldman, Senior
28 Litigation Counsel; Andrew B.
29 Insenga, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Maria del Carmen Albanil, a native and
6 citizen of Honduras, seeks review of a February 24, 2011,
7 order of the BIA denying her motion for reconsideration. In
8 re Maria del Carmen Albanil, No. A027 932 461 (B.I.A. Feb.
9 24, 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion for
12 reconsideration for abuse of discretion. See Jin Ming Liu
13 v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The BIA
14 denied Albanil’s motion because it concluded that, rather
15 than identifying any errors of fact or law in its previous
16 decision, it reasserted the same claims she had raised on
17 appeal. See 8 C.F.R. § 1003.2(b)(1) (“A motion to
18 reconsider shall state the reasons for the motion by
19 specifying the errors of fact or law in the prior Board
20 decision and shall be supported by pertinent authority”).
21 Albanil’s opening brief does not challenge that conclusion;
22 instead it argues that the BIA erred in its underlying
23 decision. We do not have jurisdiction to review that
2
1 decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
2 F.3d 83, 89-90 (2d Cir. 2001). Accordingly, Albanil has
3 waived any challenge to the BIA’s decision denying
4 reconsideration. See JP Morgan Chase Bank v. Altos Hornos
5 de Mexico, 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments
6 not made in an appellant’s opening brief are waived even if
7 the appellant . . . raised them in a reply brief.”). While
8 we have discretion to excuse such an error if manifest
9 injustice would otherwise result, see id., this case does
10 not warrant such an exercise of discretion as the BIA in any
11 case did not abuse its discretion in denying
12 reconsideration.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
3