Chukwujindu Mbakpuo v. Eric Holder, Jr. ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1267
CHUKWUJINDU VICTOR MBAKPUO,
Petitioner - Appellant,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals
Submitted: July 8, 2011 Decided: July 21, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Chukwujindu Victor Mbakpuo, Appellant Pro Se. Channah Marti
Farber, 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Unpublished opinions are not binding precedent in this circuit.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:
Chukwujindu Victor Mbakpuo, a native and citizen of
Nigeria, petitions for review an order of the Board of
Immigration Appeals (“Board”) denying his motion to reconsider
and his separate motion to reopen. We dismiss in part and deny
in part the petition for review.
In the initial final order of removal, Mbakpuo’s
application for cancellation of removal was denied as a matter
of discretion and because he was not statutorily eligible for
such relief. Insofar as Mbakpuo seeks review of that part of
the Board’s order denying reconsideration of the denial of
cancellation of removal as a matter of discretion, this court
does not have jurisdiction. See Jean v. Gonzales, 435 F.3d 475,
481 (4th Cir. 2006) (“When the [Board] refuses to reconsider the
discretionary denial of relief under one of the provisions
enumerated in 1252(a)(2)(B) - a decision which is not subject to
review in the first place - the court will not have jurisdiction
to review that same denial merely because it is dressed as a
motion to reconsider.”). This court also does not have
jurisdiction to review that part of the Board’s order deciding
not to grant reopening sua sponte. Mosere v. Mukasey, 552 F.3d
397, 400-01 (4th Cir. 2009). Accordingly, this court dismisses
the petition for review from those parts of the Board’s order.
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Insofar as Mbakpuo seeks review of the Board’s order
denying his motion to reconsider the finding that he was not
statutorily eligible for cancellation of removal, this court’s
review is for abuse of discretion. INS v. Doherty, 502 U.S.
314, 323-24 (1992); Stewart v. INS, 181 F.3d 587, 595 (4th Cir.
1999); see 8 C.F.R. § 1003.2(a) (2011). Motions to reconsider
are especially disfavored “in a deportation proceeding, where,
as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United
States.” Doherty, 502 U.S. at 323. A motion to reconsider
asserts the Board made an error in its earlier decision. It
must “state the reasons for the motion by specifying the errors
of fact or law in the prior Board decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1)
(2011); see also 8 U.S.C. § 1229a(c)(6)(C) (2006) (“The motion
[to reconsider] shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.”).
“[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). We conclude the
Board did not abuse its discretion denying the motion to
reconsider the finding that he was not statutorily eligible for
cancellation of removal. We further conclude the Board did not
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abuse its discretion finding Mbakpuo was not prejudiced when the
Board initially found he waived his adjustment of status claim.
We also conclude the Board did not err finding that
the motion to reopen was untimely. 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)(i) (2006); 8 C.F.R.
§ 1003.2(c)(2) (2011). The Board’s final order was entered June
18, 2010. Mbakpuo’s motion was filed on September 17, 2010, or
one day beyond the ninety day period.
Accordingly, we dismiss the petition for review from
those parts of the Board’s order over which this court does not
have jurisdiction and deny the petition for review from the
remaining parts of the Board’s order.
PETITION DENIED IN PART AND DISMISSED IN PART
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