Arcega v. Mukasey ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1204
MARGARITA MARCELLANA ARCEGA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General; MICHAEL CHERTOFF,
Secretary, Department of Homeland Security; GREGORY L.
COLLETT, District Director, Office of Detention and Removal
Operations, Department of Homeland Security Immigration and
Customs Enforcement; CALVIN MCCORMICK, Field Office
Director, Office of Detention and Removal Operations,
Department of Homeland Security Immigration and Customs
Enforcement; GEORGE WILLIAM MAUGANS, III, Chief Counsel,
Department of Homeland Security Immigration and Customs
Enforcement,
Respondents.
No. 08-1422
MARGARITA MARCELLANA ARCEGA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General; MICHAEL CHERTOFF,
Secretary, Department of Homeland Security; GREGORY L.
COLLETT, District Director, Office of Detention and Removal
Operations, Department of Homeland Security Immigration and
Customs Enforcement; CALVIN MCCORMICK, Field Office
Director, Office of Detention and Removal Operations,
Department of Homeland Security Immigration and Customs
Enforcement; GEORGE WILLIAM MAUGANS, III, Chief Counsel,
Department of Homeland Security Immigration and Customs
Enforcement,
Respondents.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: November 5, 2008 Decided: December 5, 2008
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petitions denied by unpublished per curiam opinion.
Rachel S. Ullman, YANG & ULLMAN, P.C., Silver Spring, Maryland,
for Petitioner. Gregory G. Katsas, Assistant Attorney General,
Michelle Gorden Latour, Assistant Director, Matt A. Crapo,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Margarita Marcellana
Arcega, a native and citizen of the Philippines, petitions for
review of orders of the Board of Immigration Appeals (“Board”)
denying her motions to reopen and to reconsider. We deny the
petitions for review.
An alien may file one motion to reopen within ninety
days of the entry of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2008). A
motion to reopen “shall state the new facts that will be proven
at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8
C.F.R. § 1003.2(c)(1) (2008). It “shall not be granted unless
it appears to the Board that evidence sought to be offered is
material and was not available and could not have been
discovered or presented at the former hearing.” Id.We review the denial of a motion to reopen for abuse
of discretion. 8 C.F.R. § 1003.2(a) (2008); INS v. Doherty, 502
U.S. 314, 323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744
(4th Cir. 2006). A denial of a motion to reopen must be
reviewed with extreme deference, since immigration statutes do
not contemplate reopening and the applicable regulations
disfavor such motions. M.A. v. INS, 899 F.2d 304, 308 (4th Cir.
1990) (en banc). This court will reverse the Board’s denial of
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a motion to reopen only if the denial is “arbitrary, capricious,
or contrary to law.” Barry, 445 F.3d at 745. “[A]dministrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B) (2006). The Board’s decision need only
be reasoned, not convincing. M.A., 899 F.2d at 310.
It is uncontroverted that the motion to reopen was
untimely as it was filed more than ninety days after the Board
dismissed Arcega’s appeal. We find the Board did not abuse its
discretion in finding that the ninety day period should not be
equitably tolled. The evidence before the Board, including the
letters sent by Arcega’s counsel during the course of the appeal
to the Board and immediately after the dismissal order was
entered, does not compel a different result. We further find we
are without jurisdiction to review the Board’s discretionary
decision denying relief under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III)
(2006). See 8 U.S.C. § 1252(a)(2)(B)(ii) (2006); see, e.g.,
Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001). The Board’s
findings that Arcega failed to show extraordinary circumstances
as a result of her counsel’s ineffectiveness or that her removal
would cause an extreme hardship on her children were issues of
fact and not law. See Zhu v. Gonzales, 493 F.3d 588, 595-96
(5th Cir. 2007); Ignatova v. Gonzales, 430 F.3d 1209, 1213 (8th
Cir. 2005). We further find we are without jurisdiction to
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review the Board’s decision not to sua sponte reopen the
proceedings. See, e.g., Tamenut v. Mukasey, 521 F.3d 1000, 1004
(8th Cir. 2008) Accordingly, we find the record does not compel
a different result and the Board did not abuse its discretion in
denying the motion to reopen.
We review the Board’s decision to deny the motion to
reconsider for abuse of discretion. INS v. Doherty, 502 U.S.
314, 323-24 (1992); see 8 C.F.R. § 1003.2(a) (2008). A motion
for reconsideration asserts that the Board made an error in its
earlier decision, Turri v. INS, 997 F.2d 1306, 1311 n.4 (10th
Cir. 1993), and requires the movant to specify the error of fact
or law in the prior Board decision. 8 C.F.R. § 1003.2(b)(1)
(2008); Matter of Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991)
(noting that a motion to reconsider questions a decision for
alleged errors in appraising the facts and the law). The burden
is on the movant to establish that reconsideration is warranted.
INS v. Abudu, 485 U.S. 94, 110 (1988). “To be within a mile of
being granted, a motion for reconsideration has to give the
tribunal to which it is addressed a reason for changing its
mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
Motions that simply repeat contentions that have already been
rejected are insufficient to convince the Board to reconsider a
previous decision. Id.5
We find the Board did not abuse its discretion in
denying the motion to reconsider. Insofar as the Board may have
made a factual error concerning whether Arcega had notice of the
Board’s order dismissing her appeal, we find there was
sufficient evidence in the record supporting the Board’s
decision that Arcega did not establish she did not have notice
as a result of counsel’s ineffectiveness. Arcega failed to show
how the Board erred as a matter of law or fact in reaching that
decision.
Accordingly, we deny the petitions for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITIONS DENIED
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