Diegnan v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 3, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ARISTIDE D IEG NAN; GREGORIE F.
TON YE,
Petitioners, No. 05-9596
(Nos. A95-899-329,330)
v. (Petition for Review)
ALBERTO R. GONZALES, Attorney
General,
Respondent.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.
Aristide Diegnan is a native and citizen of the Ivory Coast, and her
husband, Gregorie Tonye, is a native and citizen of Cameroon (petitioners). They
petition for review of two orders issued by the Board of Immigration Appeals
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
(BIA) denying their “M otion to Reconsider and Remand.” The petition for
review is dismissed in part and denied in part, as set forth below.
Background
M s. Diegnan applied for asylum, restriction on removal, and relief under
the Convention Against Torture in 2002. 1 After a hearing on the application, an
immigration judge (IJ) issued an oral decision denying the relief sought and
concluding that petitioners w ere ineligible for voluntary departure. The BIA
affirmed the IJ’s decision and dismissed petitioners’ appeal on August 4, 2005.
In so doing, the BIA issued a separate but essentially identical order for each
petitioner. Admin. R. at 101, 342. Petitioners did not file a petition for review of
the BIA’s August 4 orders. Instead, they filed a “M otion to Reconsider and
Remand,” id. at 12-22, w hich the BIA denied on November 2, 2005, in two
separate but–again–essentially identical orders, id. at 2, 339. This petition for
review followed.
Discussion
The majority of petitioners’ appellate brief challenges the BIA’s A ugust 4
orders. But petitioners failed to timely file a petition for review of the August 4
orders as required by 8 U.S.C. § 1252(b)(1), and we therefore lack jurisdiction to
consider them. Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). W e
do, however, possess jurisdiction to review the BIA’s denial of petitioners’
1
M r. Tonye is a derivative applicant of M s. Diegnan’s claims for relief.
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“M otion to Reconsider and Remand,” id. at 1361, which the BIA treated as a
motion to reopen and reconsider.
A motion to reopen seeks to present evidence that is material
and was not available and could not have been discovered or
presented at the former hearing. A motion to reconsider, on the other
hand, is available to raise errors of fact or law committed by the B IA
in its prior decision, and must be supported by pertinent authority.
M ahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir. 2005) (quotations and
citations omitted).
W e review the BIA’s denial of petitioners’ “M otion to Reconsider and
Remand” for an abuse of discretion. Infanzon, 386 F.3d at 1362 (reviewing
motion to reopen for abuse of discretion); Belay-Gebru v. INS, 327 F.3d 998,
1000 n.5 (10th Cir. 2003) (suggesting that motion to reconsider is reviewed for
abuse of discretion); 8 C.F.R. § 1003.2(a) (providing that “[t]he decision to grant
or deny a motion to reopen or reconsider is within the discretion of the Board”).
“W e will reverse only if the BIA’s ‘decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.’” M ahamat, 430 F.3d at 1283(quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002)). Having reviewed
the briefs, the record, and the applicable law pursuant to the above-mentioned
standard, we conclude that the BIA did not abuse its discretion in denying
petitioners’ “M otion to Reconsider and Remand.”
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Conclusion
To the extent petitioners challenge the BIA’s orders of August 4, 2005, w e
DISM ISS the petition for review for w ant of jurisdiction. See Infanzon, 386 F.3d
at 1361. To the extent petitioners challenge the BIA’s orders of November 2,
2005, denying their “M otion to Reconsider and Remand,” we DENY the petition
for review .
Entered for the Court
Deanell Reece Tacha
Chief Circuit Judge
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