Diala v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EMILIA ULUMMA DIALA,
Petitioner,
v.
No. 98-1343
U.S. IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A71-799-730)
Submitted: September 15, 1998
Decided: October 13, 1998
Before WIDENER, NIEMEYER, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Ronald D. Richey, Rockville, Maryland, for Petitioner. Frank W.
Hunger, Assistant Attorney General, Richard M. Evans, Assistant
Director, Holly A. Gimbel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Emilia Ulumma Diala appeals from the Board of Immigration
Appeals' (Board's) denial of her motion to reopen deportation pro-
ceedings. Finding no abuse of discretion, we affirm.
Diala, a native and citizen of Nigeria, was charged with deporta-
bility under 8 U.S.C.A. § 1227(a)(1)(B) (West 1994 & Supp. 1998),
for remaining in the United States beyond the period authorized by
her nonimmigrant visa. Diala conceded deportability, but sought asy-
lum, withholding of deportation, and voluntary departure. In support
of her application, she testified that she was a leader of a student
group of the Social Democratic Party (SDP). Additionally, she testi-
fied that her father, who was also active in the SDP, and who held a
position in the prior government, was arrested in 1990 by the incom-
ing military government. Following his arrest, Diala's family dis-
persed and she left for the United States. As of the date of her
application, Diala did not know the whereabouts of her father or the
rest of her family.
Finding that Diala failed to demonstrate a well-founded fear of per-
secution, the Immigration Judge (IJ) denied her application for asy-
lum and withholding of deportation, but granted her application for
voluntary departure. Diala filed a timely appeal of the IJ's decision,
which was affirmed by the Board. Diala did not appeal this decision,
but rather filed a "Motion to Reopen Deportation Proceedings and for
Stay of Deportation."
In support of this motion, Diala provided an affidavit from a Nige-
rian citizen, now a permanent resident of the United States. According
to this affidavit, the affiant knew Diala and believed that due to the
current political conditions in Nigeria, Diala would be in danger
should she return. The affiant also stated that Nigeria was rife with
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riots and demonstrations, and that hundreds of demonstrators, espe-
cially those who spoke against the government, have been killed.
Despite these assertions, the Board denied Diala's motion, stating
only that she failed to meet the requirements set forth in 8 C.F.R.
§ 3.2(c) (1998). Diala filed a timely petition for review in this Court.
We review the Board's denial of a motion to reopen for an abuse
of discretion and must affirm that denial unless it: (1) was made with-
out rational explanation; (2) inexplicably departed from established
procedures; or (3) rested upon an impermissible basis such as invidi-
ous discrimination against a particular group. See INS v. Doherty, 502
U.S. 314, 323 (1992) (noting abuse of discretion standard); see also
M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990). Diala contends that
the Board failed to provide a rational explanation for its denial and
asserts that she satisfied the relevant regulatory requirements neces-
sary to grant her motion to reopen. We disagree.
The Board clearly provided a rational explanation for its denial of
Diala's motion--she failed to meet the regulatory criteria of § 3.2(c).
Diala appears to argue that this statement does not provide a specific
explanation. We find this argument without merit. Satisfaction of
§ 3.2(c) does not end the inquiry for determination of the grant of a
motion to reopen, but rather advances the appellant past the threshold
requirement. The Board must still, in its discretion, determine that the
grant of the motion is warranted. We thus find Diala's inability to sat-
isfy § 3.2(c)'s initial requirements a sufficient and rational explana-
tion for the Board's denial of her motion. Further, reference to the
administrative record supports the Board's determination that Diala's
motion does, in fact, fail to meet § 3.2(c)'s requirements. Accord-
ingly, we affirm the Board's denial of Diala's motion. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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