Herbert Quintanilla v. Eric Holder, Jr. , 537 F. App'x 241 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2382
HERBERT ANTONIO QUINTANILLA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 26, 2013 Decided: August 7, 2013
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner. Stuart F. Delery, Principal Deputy
Assistant Attorney General, Shelley R. Goad, Assistant Director,
Jennifer R. Khouri, 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Unpublished opinions are not binding precedent in this circuit.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:
Herbert Antonio Quintanilla, a native and citizen of
El Salvador, petitions for review of an order of the Board of
Immigration Appeals (“Board”) denying his motion to reconsider
and remand. We deny the petition for review.
Quintanilla had thirty days to timely file a petition
for review. See 8 U.S.C. § 1252(b)(1) (2006). 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 a motion to reopen or reconsider with the
Board does not toll the thirty-day period for seeking review of
an underlying decision. Id. at 394. Accordingly, our review is
limited to the propriety of the Board’s October 10, 2012 order
denying Quintanilla’s motion to reconsider and remand. We lack
jurisdiction to review the August 17, 2011 order dismissing the
appeal from the immigration judge’s order and the April 12, 2012
order denying the first motion to reopen.
The Board’s denial of reconsideration and reopening is
reviewed for abuse of discretion. * 8 C.F.R. § 1003.2(a) (2013);
INS v. Doherty, 502 U.S. 314, 323-24 (1992); Narine v. Holder,
559 F.3d 246, 249 (4th Cir. 2009); Mosere v. Mukasey, 552 F.3d
*
Because Quintanilla submitted new evidence with the
motion, the Board also construed the motion to reconsider as a
motion to reopen.
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397, 400 (4th Cir. 2009). A motion to reconsider asserts that
the Board made an error in its earlier decision. The motion
“shall 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). We
will 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).
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) (2006); 8 C.F.R. § 1003.2(c)(2). This
time limit does not apply if the basis for the motion is to seek
asylum or withholding of removal 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) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii). The Board’s “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) (citations and 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 or other evidentiary material.” 8
C.F.R. § 1003.2(c)(1). Such motion “shall not be granted unless
it appears to the Board that evidence sought to be offered is
material and was not available and could not have been
discovered or presented at the former hearing.” Id.We conclude that the Board did not abuse its
discretion in denying reconsideration or reopening. The record
supports the finding that Quintanilla did not show that there
was an error of law or fact in the Board’s earlier decisions
that would warrant reconsideration. We also note that insofar
as Quintanilla sought reopening by submitting new evidence,
substantial evidence supports the finding that he failed to show
that his motion was timely and that the new evidence was
previously unavailable and could not have been discovered or
presented at his hearing before the immigration judge.
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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