Owe v. Holder , 326 F. App'x 694 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1843
MARGARET O. OWE; MICHAEL T. OWE; PAUL O. OWE,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 9, 2009 Decided: June 18, 2009
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Theodore N. Nkwenti, LAW OFFICE OF THEODORE NKWENTI, Silver
Spring, Maryland, for Petitioners. Michael F. Hertz, Acting
Assistant Attorney General, John W. Blakeley, Senior Litigation
Counsel, Jane T. Schaffner, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Margaret Omolara Owe (“Owe”) and her two children, all
natives and citizens of Nigeria, petition for review of an order
of the Board of Immigration Appeals (“Board”) dismissing her
appeal from the immigration judge’s order denying her motion to
reopen. We deny the petition for review.
This court reviews the denial of a motion to reopen
for abuse of discretion. 8 C.F.R. § 1003.23(b)(1)(iv) (2008);
INS v. Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales,
445 F.3d 741, 744 (4th Cir. 2006). The Board’s decision should
be reversed only if it is arbitrary, capricious or contrary to
law. Massis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008). A
denial of a motion to reopen must be reviewed with extreme
deference, since such motions are disfavored and every delay
works to the advantage of the deportable alien. Barry, 445 F.3d
at 744-45. When, as here, the Board affirmed the immigration
judge’s decision to deny the motion to reopen, the court reviews
that decision and the immigration judge’s decision to the extent
the Board relied upon it. Niang v. Gonzales, 492 F.3d 505, 511
n.8 (4th Cir. 2007).
A removal order issued in absentia may be rescinded
“upon a motion to reopen filed within 180 days after the date of
the order of removal if the alien demonstrates that the failure
to appear was because of exceptional circumstances (as defined
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in subsection (e)(1) of this section).” See 8 U.S.C.
§ 1229a(b)(5)(C)(i) (2006). Section 1229a(e)(1) provides that:
The term “exceptional circumstances” refers to
exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the
alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of
the alien, but not including less compelling
circumstances) beyond the control of the alien.
In determining whether exceptional circumstances are
present, the immigration judge should consider the totality of
the circumstances. Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st
Cir. 2006) (including the strength of the alien’s underlying
claim); Romero-Morales v. INS, 25 F.3d 125, 129-31 (2d Cir.
1994). Because both the Board and the immigration judge made
the factual finding that Owe provided insufficient evidence
establishing the existence of exceptional circumstances, the
finding “must stand unless the record compels reversal . . .”
Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002).
We find no abuse of discretion as the Board has made
it clear that in a motion to reopen based on exceptional
circumstances brought on by a serious illness, the alien has the
burden of providing “detail regarding the cause, severity, or
treatment of the alleged illness” in the form of evidence from a
medical professional or detailed affidavits from the alien,
roommates, friends and co-workers attesting to the extent of the
illness. In re J-P-, 22 I. & N. Dec. 33, 34 (B.I.A. 1998).
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Because the record does not compel a different result,
we deny the petition 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.
PETITION DENIED
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