Shah v. Atty Gen USA , 265 F. App'x 80 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-21-2008
Shah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5078
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5078
NILESH KAMAR SHAH,
Petitioner
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A77-699-780)
Immigration Judge: Hon. Henry S. Dogin
Submitted Under Third Circuit LAR 34.1(a)
February 1, 2008
Before: RENDELL and CHAGARES, Circuit Judges
POLLAK,* District Judge
(Filed: February 21, 2008)
OPINION
*
Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge
Nilesh Kamar Shah petitions for review of the Board of Immigration Appeals’
(“BIA”) order of November 17, 2006, denying his motion to reopen and reconsider. For
the reasons given below, his petition will be denied.
I.
Petitioner, a native and citizen of India, entered the United States without
inspection in 1999. He was ordered removed in absentia in 2001. In 2004, he
successfully moved to reopen the proceeding. At a subsequent hearing before an
immigration judge (“IJ”), he conceded removability. He applied for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”), arguing that he
would be subject to persecution and torture in India on account of his Hindu faith. The IJ
found petitioner’s testimony not credible and ordered his removal on October 8, 2004.
Shah appealed, and the BIA affirmed on July 17, 2006. Shah moved for reconsideration
and reopening. On November 17, 2006, the BIA denied that motion. Shah has petitioned
this court for review of the BIA’s order of November 17, 2006.
II.
We review the denial of a motion to reconsider and reopen for abuse of discretion.
See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “Under the abuse of discretion
standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to
law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks
2
omitted). We review de novo questions of law, including whether a petitioner’s right to
due process was violated. See Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).
III.
Petitioner makes two claims of error with regard to the denial of his motion to
reopen and reconsider.1
A.
First, petitioner contends that the BIA denied him due process of law and abused
its discretion because the BIA refused to consider the evidence petitioner submitted in
support of his motion on the ground that the evidence was “time-barred.”
Under 8 C.F.R. § 1003.2(c)(1), a motion to reopen “shall not be granted unless it
appears to the Board that evidence sought to be offered . . . was not available and could
not have been discovered or presented at the former hearing.” See Caushi v. Att’y Gen.,
436 F.3d 220, 231 (3d Cir. 2006).
The BIA did not fail to consider the evidence presented by petitioner. The BIA’s
opinion discusses the evidence in detail, concluding that the evidence was not properly
presented in a motion to reopen because it could have been discovered or presented at
1
Petitioner has petitioned for review only of the BIA’s denial of his motion to reopen
and reconsider. Because petitioner did not petition for review of the BIA’s order of July
17, 2006, dismissing his appeal of the IJ’s denial of relief, we lack jurisdiction to review
that order. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 404-06 (1995).
Accordingly, we cannot consider petitioner’s contention that the BIA erred in that order
in affirming the IJ’s adverse credibility determination.
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petitioner’s 2004 hearing. Petitioner does not identify errors in the BIA’s determination
that the evidence could have been presented in 2004; nor are any such errors apparent.
Accordingly, we find no merit in petitioner’s challenge, on this ground, to the BIA’s
denial of his motion to reopen and reconsider.2
B.
Second, petitioner contends that the BIA denied him due process of law “since he
was never given the opportunity to present his case to a judge prior to the original order
being entered” in 2001, in absentia and allegedly without notice to petitioner. This
argument is without merit, because petitioner was not removed on the basis of the 2001
order of removal. Rather, following the reopening of his case in 2004, petitioner was
given a full and fair opportunity to present evidence on his own behalf at a hearing held
on October 8, 2004. Petitioner, represented by counsel, conceded removability and
presented evidence in support of his applications for relief. His petition will therefore be
denied on this ground as well.
2
Petitioner does not contend that 8 C.F.R. § 1003.2(c)(1) is itself unconstitutional.
4