Shierly v. Attorney General , 308 F. App'x 642 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-28-2009
Shierly v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4231
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IMG-010 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4231
___________
FNU SHIERLY,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95-153-146)
Immigration Judge: Donald V. Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 21, 2009
Before: FUENTES, WEIS AND GARTH, Circuit Judges
(Opinion filed January 28, 2009)
___________
OPINION
___________
PER CURIAM.
Shierly,1 a native and citizen of Indonesia, seeks review of a final order
1
The petitioner goes by one name.
1
issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we
will deny the petition for review.
In September 2000, Shierly was admitted to the United States on a
nonimmigrant student visa to attend California State University, but she did not attend the
university after October 11, 2000. She applied for asylum, withholding of removal, and
relief under the Convention Against Torture, as well as voluntary departure. After an
evidentiary hearing, in May 2003, the Immigration Judge issued its decision denying
relief but granting voluntary departure. In July 2004, the BIA affirmed the IJ’s decision.
This Court denied Shierly’s petition for review in August 2005.
In April 2007, Shierly filed a motion to reopen and remand to adjust her
status. She based her motion on her recent marriage to a United States citizen.2 The BIA
denied the motion on May 18, 2007, holding that it was untimely under 8 C.F.R.
§ 1003.2(c), which requires such motions to be filed within ninety days of the entry of a
final order of removal. The BIA further held that Shierly had failed to demonstrate
exceptional circumstances sufficient to warrant the exercise of its discretion to consider
her motion sua sponte under 8 C.F.R. § 1003.2(a). Shierly did not file a petition for
review from this denial. Instead, on June 18, 2007, she filed a motion to reconsider the
BIA’s denial of her motion to reopen. On October 1, 2007, the BIA denied her motion
2
In April 2005, Shierly married Huse Begic, and their son was born that
same month. Begic became a naturalized United States citizen in March 2006, and in
October 2006, he filed an I-130 Petition for Alien Relative on Shierly’s behalf.
2
for reconsideration. Shierly then filed this petition for review.
Although Shierly argues that the BIA abused its discretion when it denied
her motion to reopen, our review is limited to the BIA’s October 1, 2007 decision denying
her motion for reconsideration. See Nocon v. I.N.S., 789 F.2d 1028, 1032-33 (3d Cir.
1986) (final deportation orders and orders denying motions to reconsider are
independently reviewable; a timely petition for review must be filed with respect to the
specific order sought to be reviewed). See also Stone v. INS, 514 U.S. 386, 405 (1995) (a
motion for reconsideration does not toll the time to file a petition for review of a final
deportation order). We review the denial of a motion for reconsideration for an abuse of
discretion. Nocon, 789 F.2d at 1033. Under that standard of review, we may reverse the
BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002).
A motion for reconsideration must specify the errors of law or fact in the
BIA’s prior decision. 8 C.F.R. § 1003.2(b)(1). It is a “request that the Board re-examine
its decision in light of additional legal arguments, a change of law, or perhaps an
argument or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec.
336, 338 (BIA 2002) (en banc) (internal quotation and citations omitted). In Shierly’s
case, in denying the motion for reconsideration, the BIA cited section 1003.2(b) and
concluded that the motion specified no error of fact or law in the May 18, 2007 decision,
and that Shierly therefore failed to meet the regulatory requirements for reconsideration.
3
Upon review of the relevant documents in the administrative record, we agree with the
BIA’s conclusion.
Moreover, we add that it appears that the BIA did consider Shierly’s
arguments and noted that Shierly’s motion to reopen did not comport with the
requirements for motions to reopen to pursue adjustment of status, in light of the
untimeliness of the motion to reopen and Shierly’s failure to comply with the grant of
voluntary departure. See Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002);
Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996). We have considered Shierly’s
arguments relying on Barrios v. Attorney General, 399 F.3d 272 (3d Cir. 2005), and
Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005), and similarly conclude that they are
without merit, given the untimeliness of her motion to reopen and the voluntary departure
period having lapsed before the untimely motion was filed. Also, the BIA cited its
decision in Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997), and noted that Shierly’s later
eligibility for adjustment of status did not constitute exceptional circumstances sufficient
to warrant sua sponte reopening of her case. On this point, even if we had jurisdiction to
review the BIA’s denial of Shierly’s motion to reopen, we note that this Court would
generally lack jurisdiction to review the BIA’s decision not to exercise its power to
reopen Shierly’s proceedings sua sponte. See Cruz v. Attorney General, 452 F.3d 240,
249 (3d Cir. 2006) (citing Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003)).
4
We discern no abuse of the BIA’s discretion in its October 1, 2007 order.
We will deny the petition for review.