Sangarbuwa v. Gonzales , 156 F. App'x 612 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1085
DANIEL CHO AWAH SANGARBUWA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-198-121)
Submitted: October 21, 2005 Decided: December 5, 2005
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Bokwe G. Mofor, Silver Spring, Maryland, for Petitioner. Paul J.
McNulty, United States Attorney, Anita C. Snyder, Assistant United
States Attorney, Alexandria, Virginia, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Cho Awah Sangarbuwa (“Sangarbuwa”), a native and
citizen of Cameroon, petitions for review of a Board of Immigration
Appeals’ (“Board”) order denying his motion to reconsider and
reopen his removal proceedings. We deny the petition for review.
As a threshold matter, a petitioner has thirty days to
file a petition for review. See 8 U.S.C. § 1252(b)(1) (2000).
This time period is “jurisdictional in nature and must be construed
with strict fidelity to [its] terms.” Stone v. INS, 514 U.S. 386,
405 (1995). The filing of the motion to reconsider does not toll
the thirty-day period for seeking review of the underlying order.
Id. at 394. Accordingly, because Sangarbuwa did not file his
petition for review within thirty days of the Board’s initial
decision, this court’s review is limited to Sangarbuwa’s motion to
reconsider and reopen.
Moreover, although Sangarbuwa styled his motion as one
seeking reopening in addition to reconsideration, the motion failed
to meet the standards for a motion to reopen. 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. § 1003.23(b)(3) (2005).
“A motion to reopen will not be granted unless the Immigration
Judge is satisfied that evidence sought to be offered is material
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and was not available and could not have been discovered or
presented at the former hearing.” Id.This court has also recognized three independent grounds
on which a motion to reopen removal proceedings may be denied:
“(1) the alien has not established a prima facie case for the
underlying substantive relief sought; (2) the alien has not
introduced previously unavailable, material evidence; and (3) where
relief is discretionary, the alien would not be entitled to the
discretionary grant of relief.” Onyeme v. INS, 146 F.3d 227, 234
(4th Cir. 1998) (citing INS v. Abudu, 485 U.S. 94, 104-05 (1988)).
In adhering to the degree of deference given to the agency’s
discretionary review, this court has observed that the decision to
deny a motion to reopen “need only be reasoned, not convincing.”
M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (internal quotation
marks omitted).
Sangarbuwa’s brief was devoid of any new facts or newly
discovered evidence. The request by a petitioner to have the court
reevaluate the facts and law previously presented does not
constitute a proper motion to reopen. See Cruz-Lopez v. INS, 802
F.2d 1518, 1520-21 (4th Cir. 1986) (holding that an applicant must
offer specific facts that he “will more likely than not be singled
out for persecution”). A motion to reopen is not a substitute for
an appeal and is not to be used as an opportunity to relitigate
issues previously considered and rejected by the Board. Because
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this is exactly what Sangarbuwa attempted to do, his motion to
reopen was properly denied.
Although Sangarbuwa’s motion was more properly
characterized as a motion to reconsider, here, too, the
requirements of the relevant regulations were not met. The
regulations provide, among other things, that a motion to
reconsider 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) (2005);
see also Zhao v. United States Dep’t of Justice, 265 F.3d 83, 90-91
(2d Cir. 2001) (discussing requirements for motion to reconsider).
The burden is on the movant to establish that reconsideration is
warranted. See Abudu, 485 U.S. at 110. The decision to grant or
deny a motion to reconsider is within the discretion of the Board,
and thus this court reviews the Board’s decision for abuse of
discretion. See 8 C.F.R. § 1003.2(a) (2005). Sangarbuwa failed to
meet these standards.
Sangarbuwa challenges both the factual basis and the
logic underlying the Board’s determination. Other than suggesting
that any discrepancies were “minor and not material to his case for
asylum,” however, Sangarbuwa’s motion fails to address the
immigration judge’s carefully articulated concerns. Moreover, the
discrepancies noted by the immigration judge went to the heart of
the credibility of Sangarbuwa’s claim. Sangarbuwa’s conflicting
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testimony concerning confrontations with Cameroon authorities; his
claim that he sought medical treatment at a government hospital
while seeking to escape government authorities; his claim that he
went into hiding, then resumed normal activities without inviting
government interest; the discrepancies as to whether he was
released from prison or whether he escaped; and, his own parent’s
failure to mention his son’s detainment--all are considerations
that a fact finder might reasonably consider in deciding whether
Sangarbuwa’s testimony was credible. In addition, Sangarbuwa’s
attempt to corroborate his story only left more questions
unanswered. Where an immigration judge’s adverse credibility
ruling is challenged on appeal, courts “must find that the evidence
not only supports th[e] conclusion [that the applicant is eligible
for asylum], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992) (emphasis in original). Again, Sangarbuwa fails to
meet this standard.
Accordingly, 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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