Mendes Lourenco v. Attorney General of the United States , 465 F. App'x 100 ( 2011 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 09-4549
    ___________
    ELIO FELIPE MENDES LOURENCO,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ____________________________________
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A096-254-247)
    Immigration Judge: Honorable Annie Garcy
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 6, 2011
    Before: MCKEE, Chief Judge, SMITH and GARTH, Circuit Judges
    (Opinion filed: April 22, 2011)
    ___________
    OPINION
    ___________
    PER CURIAM
    Elio Felipe Mendes Lourenco petitions for review of a final order entered by the
    Board of Immigration Appeals (“BIA”), which dismissed his appeal of an immigration
    judge’s (“IJ”) denial of his motion to reopen. For the following reasons, we will deny the
    petition for review.
    Lourenco is a native and citizen of Portugal. He and his family entered the United
    States in 1990, when Lourenco was four years old, as nonimmigrant visitors for pleasure.
    The family members overstayed their visas, and in 2004 the government initiated
    removal proceedings. Lourenco was charged as being removable pursuant to 
    8 U.S.C. § 1227
    (a)(1)(B) (remaining in the country beyond the authorized period). At a hearing in
    2006, he conceded removability and expressed a desire to apply for cancellation of
    removal. However, he missed the deadline for submitting his application for cancelation
    of removal, and the IJ ordered him removed.
    Lourenco filed a motion to reopen his application. In June 2007, the IJ granted the
    motion and gave him more than eight months to submit supporting documents and proof
    of fingerprinting. The deadline passed without any submissions. In March 2008, the IJ
    concluded that, because Lourenco had failed to submit the necessary evidence, she was
    required to dismiss his application, and again ordered Lourenco removed from the
    country.
    Lourenco filed a second motion to reopen. He attached proof that he had been
    fingerprinted in October 2007. He explained that his failure to timely submit the
    evidence was “[d]ue to an unfortunate oversight.” He did not, however, provide any
    evidence to establish his continuous physical presence in the country, or to establish that
    his removal would result in an undue hardship to a qualified relative, to support his
    application for cancelation of removal as required by 8 U.S.C. § 1229b(b)(1). The IJ
    2
    denied the motion to reopen, noting that Lourenco had not explained why he had failed to
    comply with the February 2008 deadline. The BIA adopted and affirmed the IJ’s
    decision, finding that Lourenco had abandoned his application. He filed a petition for
    review.
    We have jurisdiction to hear this appeal under 
    8 U.S.C. § 1252
    (a)(1). Because the
    BIA “invoke[d] specific aspects of the IJ’s analysis and fact-finding in support of [its]
    conclusions,” we review both the IJ and the BIA’s decisions. See Voci v. Gonzales, 
    409 F.3d 607
    , 613 (3d Cir. 2005). We review denials of motions to reopen for abuse of
    discretion. Liu v. Attorney Gen., 
    506 F.3d 274
    , 276 (3d Cir. 2009). We will reverse only
    if the decision is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 
    290 F.3d 166
    , 174 (3d Cir. 2002) (citation and quotation marks omitted). We conclude that the
    BIA did not abuse its discretion in affirming the IJ’s denial of Lourenco’s motion to
    reopen.
    A motion to reopen can be denied if (1) the movant “fail[s] to establish a prima
    facie case for the relief sought” (2) the movant “fail[s] to introduce previously
    unavailable, material evidence,” or (3) the BIA “determin[es] that even if these
    requirements were satisfied, the movant would not be entitled to the discretionary grant
    of relief which he sought.” INS v. Doherty, 
    502 U.S. 314
    , 323 (1992). When Lourenco
    submitted his motion to reopen, he included a copy of his cancelation of removal
    application and documentation to establish that he had been fingerprinted before the IJ
    ordered him removed. He failed to introduce any “previously unavailable, material
    3
    evidence.” Moreover, by failing to provide the additional evidence required by 8 U.S.C.
    § 1229b(b)(1)(A) and (D) for applicants seeking cancelation of removal, he did not
    establish prima facie eligibility for the relief sought. Thus, the BIA was acting within its
    discretion when it denied Lourenco’s motion to reopen.
    Finally, Lourenco argues that his due process rights were violated because he
    never received a hearing on the merits of his claim. However, the relief that he seeks—
    cancellation of removal—is discretionary and does not implicate a liberty or property
    interest. As a result, no process is due. Hernandez v. Gonzales, 
    437 F.3d 341
    , 346 (3d
    Cir. 2006).
    Accordingly, we will deny the petition for review.
    4
    

Document Info

Docket Number: 09-4549

Citation Numbers: 465 F. App'x 100

Judges: McKee, Smith, Garth

Filed Date: 4/22/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024