Manuel Martinez v. Eric Holder, Jr. , 524 F. App'x 934 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2327
MANUEL EDGARDO MARTINEZ, a/k/a Manuel Edgar Martinez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 12-2554
MANUEL EDGARDO MARTINEZ, a/k/a Manuel Edgar Martinez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: April 25, 2013 Decided: May 30, 2013
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Petitions dismissed by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Stuart F. Delery, Principal Deputy
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, David H. Wetmore, 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Unpublished opinions are not binding precedent in this circuit.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, Manuel Edgardo
Martinez, a native and citizen of El Salvador, petitions for
review of two orders from the Board of Immigration Appeals
(“Board”): (1) the order dismissing the appeal from the
immigration judge’s order finding him removable for having been
convicted of an aggravated felony and a controlled substance
offense and denying withholding under the Convention Against
Torture (“CAT”) and (2) the order denying reconsideration. We
dismiss both petitions.
Under Rule 28 of the Federal Rules of Appellate
Procedure, “the argument [section of the brief] . . . must
contain . . . appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.” Furthermore, the “[f]ailure to
comply with the specific dictates of [Rule 28] with respect to a
particular claim triggers abandonment of that claim on appeal.”
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999); see also Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th
Cir. 2004) (failure to challenge the denial of relief under the
CAT results in abandonment of that challenge). In Ogundipe v.
Mukasey, 541 F.3d 257, 263 n.4 (4th Cir. 2008), the Court noted
that it is “longstanding Fourth Circuit precedent” not to
consider an issue that was forfeited because it was not
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discussed in the Petitioner’s opening brief. Similarly, in
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001), the Court
noted that the Petitioner waived his challenge to the finding
that he was deportable for having been convicted of a crime of
moral turpitude. The Court further noted that the fact that the
Petitioner raised the issue in his reply brief does not remedy
the situation. This Court may overlook the rule if the
Petitioner shows that declining to review the abandoned issue
will result in a miscarriage of justice. See Suarez-
Valenzuela v. Holder, __ F.3d __, 2013 WL 1749518, *7 (4th Cir.
Apr. 24, 2013).
Because Martinez does not challenge in his opening
brief the Board’s order dismissing his appeal from the
immigration judge’s decision and he does not show that declining
to review the issue will result in a miscarriage of justice, he
has waived review. Accordingly, we will dismiss the petition
filed in No. 12-2327.
The denial of a motion to reconsider is reviewed for
abuse of discretion. 8 C.F.R. § 1003.2(a) (2012); Narine v.
Holder, 559 F.3d 246, 249 (4th Cir. 2009); Jean v. Gonzales, 435
F.3d 475, 481 (4th Cir. 2006). A motion to reconsider asserts
that the Board made an error in its earlier decision. The
movant must specify the error of fact or law in the Board’s
prior decision. See 8 C.F.R. § 1003.2(b)(1). This Court will
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reverse a denial of a motion to reconsider “only if the Board
acted arbitrarily, irrationally, or contrary to law.” Narine,
559 F.3d at 249 (internal quotation marks and citation omitted).
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this Court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including an
aggravated felony. Under § 1252(a)(2)(C), this Court retains
jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision, such as whether [Martinez]
[i]s an alien and whether []he has been convicted of an
aggravated felony.” Ramtulla v. Ashcroft, 301 F.3d 202, 203
(4th Cir. 2002). If we are able to confirm these two factual
determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), we
can only consider “constitutional claims or questions of law.”
See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
We note that there is no jurisdiction to consider a
petition for review from an order denying a motion for
reconsideration when the court does not have jurisdiction to
review the underlying removal. See Martinez-Maldonado v.
Gonzales, 437 F.3d 679, 683 (7th Cir. 2006); Sarmadi v. INS, 121
F.3d 1319, 1321-22 (9th Cir. 1997) (“where Congress explicitly
withdraws our jurisdiction to review a final order of
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deportation, our authority to review motions to reconsider or to
reopen deportation proceedings is thereby likewise withdrawn”).
Martinez concedes that he is an alien removable for
having been convicted of an aggravated felony. Thus, this Court
may only review constitutional claims and questions of law. In
his brief, Martinez does not raise either a constitutional claim
or a question of law regarding the denial of reconsideration.
Rather, he takes issue with the manner in which the Board and
the immigration judge weighed the evidence. Accordingly, we are
without jurisdiction to review the order denying
reconsideration, and we dismiss the petition for review in No.
12-2554.
We dismiss the petitions for review. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this Court and
argument would not aid the decisional process.
PETITIONS DISMISSED
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