Mary Harrison v. Eric Holder, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1083
MARY MWIKALI HARRISON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 10, 2013 Decided: June 14, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Stuart F. Delery, Principal Deputy
Assistant Attorney General, Linda S. Wernery, Assistant
Director, James E. Grimes, Senior Litigation Counsel, 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Unpublished opinions are not binding precedent in this circuit.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:
Mary Mwikali Harrison, a native and citizen of Kenya,
petitions 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.
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. § 1003.23(b) (2013).
The time limit does not apply if the basis for the motion is to
seek asylum based on changed country conditions, “if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.23(b)(4)(i). This court reviews the denial of a motion
to reopen for abuse of discretion. See INS v. Doherty, 502 U.S.
314, 323-24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400 (4th
Cir. 2009); see also 8 C.F.R. § 1003.23(b)(3). The “denial of a
motion to reopen is reviewed with extreme deference, given that
motions to reopen are disfavored because every delay works to
the advantage of the deportable alien who wishes merely to
remain in the United States.” Sadhvani v. Holder, 596 F.3d 180,
182 (4th Cir. 2009) (internal quotation marks omitted). The
motion “shall state the new facts that will be proven at a
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hearing to be held if the motion is granted and shall be
supported by affidavits and other evidentiary material.” 8
C.F.R. § 1003.23(b)(3). Also, the motion shall not be granted
unless it appears to the immigration judge that the evidence
“sought to be offered is material and was not available and
could not have been discovered or presented at the former
hearing.” Id.Here, it is undisputed that Harrison’s motion was
untimely since it was filed more than ninety days after the
immigration judge’s order. The Board found that Harrison was
not diligent in pursuing her claim that she received ineffective
assistance of counsel and thus the ninety day time limit was not
equitably tolled insofar as she raised that issue. After
reviewing the record and the Board’s decision, we will not
disturb this finding. Furthermore, we conclude that the Board
did not abuse its discretion in finding that Harrison did not
substantially comply with the requirements of In re Lozada, 19
I. & N. Dec. 637 (BIA 1988). Barry v. Gonzales, 445 F.3d 741,
747 (4th Cir. 2006).
We note that in her brief, Harrison does not challenge
the Board’s finding that she did not show a change in country
conditions that warrants excusing the ninety day time limit for
motions to reopen. Harrison’s failure to challenge the Board’s
findings in this regard results in abandonment of the claim.
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Suarez-Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir.
2013). She cannot remedy the situation by raising the issue in
her reply brief. Id. at 249. Furthermore, she has failed to
show that a miscarriage of justice will result if we do not
review the issue. Id.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
this court and argument would not aid the decisional process.
PETITION DENIED
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