Asbert Joseph v. Eric Holder, Jr. , 507 F. App'x 352 ( 2013 )

Case: 11-60856 Document: 00512108651 Page: 1 Date Filed: 01/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 10, 2013
No. 11-60856
Summary Calendar Lyle W. Cayce
Clerk
ASBERT FITZGERALD JOSEPH, also known as Joseph Albert, also known as
Joseph Asbert, also known as Joseph Oskar Oskar,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A036 805 976
Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Asbert Fitzgerald Joseph, a native and citizen of Saint Vincent and the
Grenadines, petitions this court for review of an order from the Board of
Immigration Appeals (BIA) denying his motion to reopen and reconsider. He
maintains that he derived United States citizenship through his mother; that
the BIA abused its discretion in denying his motion because the new evidence
he presented showed that the findings of fact and conclusions of law of the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60856 Document: 00512108651 Page: 2 Date Filed: 01/10/2013
No. 11-60856
immigration judge and the BIA were erroneous; that the BIA failed to give full
faith and credit to the New York documents he submitted; that the BIA denied
him the equal protection of the law in failing to credit the New York law
addressing when state judgments become effective; and that reliance on a state
judgment violated his due process rights.
We review the denial of motions to reopen and reconsider “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303
(5th Cir. 2005). The BIA’s ruling will stand “so long as it is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach.” Id. at 304 (internal quotation marks and citation omitted).
Joseph has not established that the BIA abused its discretion. There is no
dispute that Joseph’s motion to reopen and reconsider was filed more than 90
days after the BIA dismissed his appeal in November 2010. As a result, his
motion was untimely filed. 8 U.S.C. § 1229a(c)(6)(B), (7)(C)(i); 8 C.F.R.
§ 1003.2(b)(2), (c)(2).
Joseph argues that the BIA should have granted his motion because his
citizenship claim was meritorious and could not be waived. With the benefit of
liberal construction, he further argues that the BIA should have tolled the time
for filing his motion to reopen and reconsider because his counsel rendered
ineffective assistance. These arguments amount to contentions that the BIA
should have exercised its discretion to reopen or reconsider the removal
proceeding sua sponte. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20
(5th Cir. 2008). We lack jurisdiction to review the BIA’s decision declining to do
so. See id.Accordingly, Joseph’s petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction.
2