Moa v. Gonzales ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2005
Charles R. Fulbruge III
Clerk
No. 03-61035
Summary Calendar
SAVUTH MOA; PAOV KONG,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A77 251 694
A77 251 685
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Savuth Moa and Paov Kong petition this court for review of
the decision of the Board of Immigration Appeals (BIA) denying
their motion for reconsideration of its order denying a motion to
reopen the removal proceedings. The petitioners argue that the
BIA committed “legal error” by denying their motions.
Motions to reopen are disfavored. Lara v. Trominski, 216
F.3d 487, 496 (5th Cir. 2000). This court reviews a denial of a
motion to reopen for an abuse of discretion. Soadjede v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-61035
-2-
Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003). Under the abuse
of discretion standard, this court will let a decision stand “so
long as it is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational
approach.” Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)
(quotation and citation omitted). Where the denial of a motion
to reopen rests upon a finding of statutory ineligibility, this
court also reviews for errors of law. Ghassan v. INS, 972 F.2d
631, 637 (5th Cir. 1992). Although this court gives great weight
to the INS’s interpretation of its own regulations, this
interpretation may be discounted if it is plainly unreasonable.
Id.
“In order to warrant reopening, a petitioner must make a
prima facie showing that he is eligible for the relief sought.”
Id. Congress eliminated the exceptional-circumstances
justification for failing to depart when it amended the
immigration statutes. Compare INA § 240B(d)(8 U.S.C. § 1229c(d))
with INA § 244(e)(8 U.S.C. § 1252(e)(2)(A)(1995)(repealed 1996).
The petitioners thus were statutorily ineligible from obtaining
an adjustment of their status. The BIA thus did not commit
“legal error” in denying the motion for reconsideration of the
denial of the motion to reopen. See Ghassan, 972 F.2d at 637.
Further, the petitioners have not shown that equitable
considerations warrant a determination that the BIA abused its
No. 03-61035
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discretion in denying their motions. See Soadjede, 324 F.3d at
832-33. This court lacks jurisdiction to consider the
petitioners’ contentions regarding the reinstatement of voluntary
departure. See Wang v. Ashcroft, 260 F.3d 452-53 (5th Cir.
2001).
The petition for review is DENIED. The motion for summary
affirmance is DENIED as moot.