Gosal v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1498
ALEXANDER GOSAL,
Petitioner,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Selya and Stahl, Senior Circuit Judges.
Wei Jia and Law Office of Wei Jia on brief for petitioner.
Colette J. Winston, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, and David V. Bernal, Assistant
Director, Office of Immigration Litigation, on brief for
respondent.
November 30, 2007
Per Curiam. Alexander Gosal, a national of Indonesia,
entered the United States in March 1997; he was authorized to
remain in the country as a visitor for six months. Gosal neither
left the country as required nor obtained permission to stay
longer, and on April 24, 2003, the Department of Homeland Security
instituted removal proceedings against him. See 8 U.S.C. §
1227(a)(1)(B) (2000).
Gosal conceded the factual allegations but sought asylum
or withholding of removal. As a practicing Christian, he argued
that he would face persecution from the Muslim majority in
Indonesia. He cited one personal incident during which, upon his
return from church, a group of men asked him for money; tried to
take his bible; and hit him in the face. He also testified that
his siblings who remained in Indonesia were constantly fearful
about openly practicing Christianity due to bomb threats against
churches.
On October 26, 2005, Gosal presented evidence before an
immigration judge, who denied relief: Gosal's asylum application
was untimely, 8 U.S.C. § 1158(a)(2)(B), and the delay was not
excusable, id. § 1158(a)(2)(C); his withholding of removal claim
was rejected because he had not established that persecution was
likely were he removed to Indonesia, id. § 1231(b)(3). The
immigration judge found that the danger did not rise to the
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requisite level, and that the thugs who had assaulted Gosal
"principally wanted money."
On appeal, the Board of Immigration Appeals agreed with
the immigration judge on all counts. Gosal did not seek review of
that order, instead filing with the Board a motion for
reconsideration, asserting that the testimony about his siblings'
anxiety had not been considered. The Board denied the motion on
February 28, 2007. Fears aside, the siblings remained in Indonesia
and practiced their religion unharmed--and, according to the Board,
that fact outweighed any testimony not cited in its original order.
Gosal timely petitioned for review of the Board's denial
of his reconsideration motion but of nothing else. Therefore, we
review only that decision, not the initial denial of the relief he
sought; the two orders are independent and we have jurisdiction
only over those that are appealed. Ven v. Ashcroft, 386 F.3d 357,
359 (1st Cir. 2004).
A motion for reconsideration must identify "the errors of
fact or law in the prior Board decision." 8 C.F.R. § 1003.2(b)(1).
Gosal did not specify any such errors. He did claim that a portion
of his testimony had been ignored, but as the Board subsequently
made clear, the testimony had not been overlooked--it simply had
not affected the result.
That explanation--and the denial that it supported--were
not irrational and did not rest on forbidden grounds; the Board did
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not abuse its discretion. Ven, 386 F.3d at 360. On the contrary,
the denial was entirely reasonable and well explained.
Gosal objects that the Board, in considering his motion,
required that he rebut its original decision. But his argument
rests on a misunderstanding of the Board's decision in Matter of
Cerna, 20 I. & N. Dec. 399 (BIA 1991). What the Board meant in the
passage Gosal cites, id. at 402, is that it will revisit its
decision afresh, on the original record, if an error is shown to
flaw its initial order. But to obtain reconsideration, the movant
must still demonstrate that the original decision "was defective in
some regard." Id. Here, Gosal did not do so.
The petition for review is denied.
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