Elkilani v. Attorney General USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-6-2007
Elkilani v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2833
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2833
SAFWAT ELKILANI,
Petitioner
v.
ATTORNEY GENERAL USA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95-831-811
(U.S. Immigration Judge: Honorable Annie S. Garcy)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 4, 2007
Before: SCIRICA, Chief Judge, HARDIMAN and ALDISERT, Circuit Judges
(Filed: December 6, 2007 )
OPINION OF THE COURT
PER CURIAM.
Safwat Elkilani petitions for review of a Board of Immigration Appeals (“BIA”)
decision denying his motion to reopen and reconsider. For the reasons that follow, we
will deny his petition.
The Government charged Elkilani, a native and citizen of Egypt, as removable for
overstaying his visa. Elkilani conceded the charge and applied for withholding of
removal and protection under the Convention Against Torture (“CAT”).1 He claimed that
he had been persecuted when Egyptian officials, looking for an anti-government activist
whom he resembled, detained him for two days when he was traveling to Libya for a
relative’s wedding. Also, Elkilani described being delayed twice at customs for
questioning, once for two hours and once for eight hours, during his relatively frequent
travel between Egypt and other countries.
The Immigration Judge (“IJ”) denied Elkilani’s application, and Elkilani appealed
to the BIA. On January 4, 2007, the BIA dismissed his appeal. Soon thereafter, Elkilani
filed a motion to reopen and reconsider. He argued that the IJ and BIA erred in
concluding that he would not be persecuted because those who had detained him believed
he held anti-government political opinions. He also claimed that an unfortunate change
for the worst in Egypt’s political atmosphere made it dangerous for him to return to his
native country. In support of the latter contention, Elkilani attached two Amnesty
International articles, one expressing general concerns about human rights issues in Egypt
and one questioning the treatment of Sudanese protesters. The BIA denied the motion to
reopen and reconsider. Elkilani filed a petition for review.
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Any asylum claim was untimely.
2
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a
motion to reopen or a motion for reconsideration under a highly deferential abuse of
discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); Nocon v.
INS, 789 F.2d 1028, 1033 (3d Cir. 1986). The BIA’s discretionary decision is not
disturbed unless it is found to be arbitrary, irrational or contrary to law. See Guo, 386
F.3d at 562.
Elkilani contends that the BIA erred in denying his motion to reopen and
reconsider because it previously had wrongly dismissed his argument that he was
persecuted when he was detained by Egyptian authorities. He claims that the IJ and the
BIA should have awarded him relief on his theory of persecution for imputed political
opinion. Elkilani also argues that the BIA should have reopened his case because he
provided evidence of a worsening political situation in Egypt. He asks that we grant him
withholding of removal or remand this matter to the BIA for a finding that he was
persecuted.
The Government opposes Elkilani’s petition. Specifically, the Government argues
that we lack jurisdiction to consider the merits of Elkilani’s withholding and CAT claims
because Elkilani did not appeal the BIA’s decision of January 4, 2007. The Government
also contends that we cannot consider Elkilani’s claims relating to his motion to reopen
and reconsider because he did not specifically challenge them in his informal brief. In the
alternative, the Government argues that the BIA did not abuse its discretion in denying
the motion to reopen and reconsider.
3
We agree with the Government that we cannot now review the BIA’s decision of
January 4, 2007. That decision was not appealed within the 30 days allotted. See 8
U.S.C. § 1252(b)(1). Because Elkilani did not comply with the statutory filing deadline,
we do not have jurisdiction to review the final order of removal. See Nocon, 789 F.2d at
1033.
We can and will review the BIA’s order denying the motion to reopen and
reconsider. Although Elkilani’s brief is spare, he presented his arguments with enough
specificity to alert us to them. Cf. Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005).
Nonetheless, we will deny Elkilani’s petition because the BIA did not abuse its discretion
in denying his motion to reopen and reconsider.
In denying the motion to reopen, the BIA concluded that the Amnesty
International articles, although post-dating the January 4, 2007 decision, concerned that
organization’s long-standing concerns about human rights conditions in Egypt. The BIA
stated that they were not particularly relevant to Elkilani’s case, and, to the extent they
were relevant, they were cumulative of evidence Elkilani had presented. The BIA did not
abuse its discretion in making these conclusions, which are supported by the evidence in
the record.
In denying the motion for reconsideration, the BIA determined that Elkilani was
not raising true grounds for reconsideration but just the same arguments that he had raised
in his appeal from the IJ’s order, including the claim that he had suffered past
persecution. The BIA noted that it had already found the arguments unpersuasive, and no
4
error of fact or law marred its decision. The BIA did not act arbitrarily or irrationally in
denying the motion on these grounds, especially because Elkilani repeated his arguments
for relief without identifying a specific error of fact or law.
In conclusion, because the BIA did not abuse its discretion in denying Elkilani’s
motion to reopen and reconsider, we will deny Elkilani’s petition for review.
5