Ordonez-Santay v. Lynch

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1067
LUIS ESTUARDO ORDONEZ-SANTAY,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Michele Y. F. Sarko, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, and
Cindy S. Ferrier, Assistant Director, on brief for respondent.
October 28, 2016
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
Per curiam. Petitioner Luis Estuardo Ordonez-Santay
("Ordonez"), a native and citizen of Guatemala, asks us to review
a Board of Immigration Appeals ("BIA") order denying his motion to
reconsider. After careful review of the briefs and the record, we
deny the petition.
I.
Ordonez came to the United States in 2008 and was
subsequently served with a Notice to Appear charging him as
removable pursuant to Immigration and Nationality Act
§ 212(a)(6)(A)(i). In response, Ordonez sought asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”).
In support of these claims, Ordonez testified that, in
2006, members of a vigilante group in his community coerced him to
join them. Ordonez explained that he participated in the group's
activities for two years and left Guatemala "because [he] did not
feel like [he] was free there anymore." Though Ordonez was never
harmed in Guatemala, he expressed fear that members of the
vigilante group might kill him if he returned.
The Immigration Judge ("IJ") pretermitted Ordonez's
application for asylum and denied his applications for withholding
of removal and protection under the CAT. The BIA summarily
affirmed the IJ's decision. Ordonez eschewed the opportunity to
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seek judicial review at that time and instead moved for
reconsideration. The BIA denied the motion to reconsider on the
grounds that there was "no error of fact or law in [its] prior
order . . . to warrant . . . reconsideration."
Ordonez filed this timely petition for review. The only
decision before us is the BIA's denial of the motion to reconsider;
the original order denying relief is not implicated.1 See Liu v.
Mukasey, 553 F.3d 37, 39 (1st Cir. 2009); see also Abdullah v.
Gonzales, 461 F.3d 92, 99 (1st Cir. 2006).
II.
We review the BIA's denial of a motion to reconsider
solely for abuse of discretion. Onwuamaegbu v. Gonzales, 470 F.3d
405, 407 (1st Cir. 2006). Under this highly deferential standard,
we must uphold the BIA's decision unless it "was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Zhang v. INS 348
F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento v. INS, 274 F.3d
26, 28 (1st Cir. 2001)) (internal quotation marks omitted).
Ordonez has advanced no argument that would warrant overturning
the BIA's denial of his motion under the abuse of discretion
1
We may, however, "review the underlying decision to the
extent necessary to determine whether the BIA abused its discretion
in denying the motion to reconsider." Liu v. Mukasey, 553 F.3d
37, 39 n.1 (1st Cir. 2009)
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standard; in fact, his brief is notably silent on this point. See
Mana v. Gonzales, 128 F. App'x 167, 170 (1st Cir. 2005).
The record bears out the BIA's conclusion that Ordonez's
motion for reconsideration was deficient because it failed to
identify any material error of law or fact in the earlier
decisions. See Liu, 553 F.3d at 39. When, as here, a movant
simply rehashes contentions previously made and rejected, he has
no legal basis to insist upon reconsideration. See id.; see also
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
Finally, we note that Ordonez's appellate brief focuses
entirely on showing that he "satisfied his burden of demonstrating
that he will more likely than not face persecution [based on a
protected ground] . . . if he returns to Guatemala, thus qualifying
him for withholding of removal." Ordonez cannot use the motion
for reconsideration as a vehicle for a belated appeal from the
order of removal. See Mana, 128 F. App'x at 169–170.
III.
For the reasons stated, the petition is DENIED.
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