Zimunya v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2395
OTILIA ZIMUNYA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-230-666)
Argued: December 1, 2005 Decided: January 13, 2006
Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
ARGUED: Bokwe Godwill Mofor, Silver Spring, Maryland, for
Petitioner. Bryan Stuart Beier, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, Civil Division, Michelle Gorden, Senior Litigation
Counsel, Office of Immigration Litigation, Annette M. Wietecha, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Otilia Zimunya petitions for review of an order of the Board
of Immigration Appeals denying her motion to reconsider and reopen
the denial of asylum and to reinstate voluntary departure. For the
reasons that follow, we dismiss her petition in part and deny it in
part.
I.
Zimunya, a native and citizen of Zimbabwe, entered the United
States on a nonimmigrant B-2 visa as a visitor for pleasure. She
was placed in removal proceedings, however, after remaining in the
United States longer than her approved period of stay. Zimunya
conceded removability, and applied for asylum, withholding of
removal, and relief under the Convention against Torture (CAT).
Her application for relief was premised on her purported
involvement with Zimbabwe’s opposition party Movement for
Democratic Change (MDC). On November 26, 2002, the immigration
judge denied all of Zimunya’s claims for relief, concluding that
Zimunya failed to establish past persecution or a well-founded fear
of future persecution if she were to return to Zimbabwe. In lieu
of removal, however, the immigration judge granted Zimunya’s
request for voluntary departure, allowing her 60 days to depart the
United States. See 8 U.S.C.A. § 1229c(b)(2) (West 1999)
(permitting a discretionary grant of permission to depart
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voluntarily for a period of up to 60 days following removal
proceedings).
On April 28, 2004, the BIA affirmed the decision of the
immigration judge without opinion. The BIA did not reinstate the
period of voluntary departure. See In re A-M—, 23 I. & N. Dec.
737, 743-44 (BIA 2005) (indicating that “the timely filing of an
appeal with the [BIA] . . . tolls the running of the time
authorized by the Immigration Judge for voluntary departure,” which
allows the BIA to reinstate this period after it issues a decision
denying relief). Zimunya did not seek direct judicial review of
this decision.
Instead, on July 24, 2004, nearly three months after the BIA’s
decision, Zimunya filed a motion for the BIA to reconsider its
order of April 28, 2004. Zimunya also moved to reopen proceedings
on the grounds that circumstances had changed following the initial
hearing in that “the government of [Zimunya’s] country has stepped
up its persecution of members of her political party.” J.A. 6.
Finally, Zimunya requested that the BIA “reinstate voluntary
departure that expired during the course of [Zimunya’s]
administrative appeal.” J.A. 6.
The BIA denied this motion. To the extent that Zimunya was
seeking reconsideration of its previous order, the BIA denied
relief because Zimunya’s motion was untimely. See 8 C.F.R.
§ 1003.2(b)(2) (2005) (requiring a motion to reconsider to “be
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filed with the Board within 30 days after the mailing of the Board
decision”). The BIA likewise denied Zimunya’s motion to reopen,
concluding that the additional evidence presented by Zimunya did
not warrant reopening the case. Additionally, the BIA denied the
request for reinstatement of voluntary departure, although it did
not elaborate on its reasoning.
Zimunya seeks judicial review of the BIA’s denial of the
motion to reopen or reconsider, arguing that the BIA abused its
discretion in denying her motion. Zimunya also seeks review of the
BIA’s denial of her request for reinstatement of voluntary
departure, contending that the BIA abused its discretion in so
doing.
II.
The primary focus of Zimunya’s petition for review is her
claim that her “request for asylum or withholding should have been
granted” in the first instance. Brief of Petitioner at 28. We
lack jurisdiction to review the merits of the BIA’s April 28, 2004,
decision to deny asylum, withholding of removal, and relief under
the CAT. Zimunya failed to petition for review of that decision
within thirty days, as required by statute. See 8 U.S.C.A.
§ 1252(b)(1) (West 1999). This time period is “jurisdictional in
nature and must be construed with strict fidelity to [its] terms.”
Stone v. INS, 514 U.S. 386, 405 (1995). A motion to reopen is not
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to be used as a substitute for an untimely appeal, and that is
precisely what Zimunya is attempting to do here. Thus, to the
extent that Zimunya challenges the merits of the denial of her
application for relief from removal, we dismiss the petition.
To the extent that Zimunya challenges the Board’s denial of
her motion to reopen, we review for abuse of discretion. See INS
v. Doherty, 502 U.S. 314, 323-24 (1992); Stewart v. INS, 181 F.3d
587, 595 (4th Cir. 1999). A denial of a motion to reopen is
reviewed with extreme deference, given that motions to reopen “are
disfavored . . . [because] every delay works to the advantage of
the deportable alien who wishes merely to remain in the United
States.” Stewart, 181 F.3d at 595 (internal quotation marks
omitted); see M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en
banc). Thus, we will reverse the BIA’s decision for abuse of
discretion only if is “arbitrary, irrational, or contrary to law.”
Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (internal
quotation marks omitted). The BIA may not grant a motion to reopen
“unless it appears to the Board that evidence sought to be offered
is material and was not available and could not have been
discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1). We have reviewed the record and cannot conclude
that the BIA’s determination that Zimunya’s additional evidence
fails to establish a well-founded fear of persecution is arbitrary,
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irrational or impermissible. Accordingly, we find that the BIA did
not abuse its discretion in denying Zimunya’s motion to reopen.
We likewise deny Zimunya’s petition for review of the BIA’s
denial of her motion to reconsider. As with a motion to reopen, we
review the BIA’s decision regarding a motion to reconsider for
abuse of discretion. See Zhong Guang Sun v. United States Dep’t of
Justice, 421 F.3d 105, 107 (2d Cir. 2005). The BIA denied relief
because Zimunya’s motion was untimely. See 8 C.F.R.
§ 1003.2(b)(2). This decision was not irrational or contrary to
law, and Zimunya makes no attempt to contradict the BIA’s
conclusion or explain how we could possibly conclude the BIA abused
in discretion.
Finally, we are without jurisdiction to review Zimunya’s
challenge to the BIA’s refusal to reinstate voluntary departure.
Voluntary departure is a discretionary form of relief from removal.
If certain statutory prerequisites are fulfilled, “[t]he Attorney
General may permit an alien voluntarily to depart the United
States,” 8 U.S.C.A. § 1229c(b)(1) (emphasis added), and thereby
avoid various adverse consequences that attach to removal. Even if
the alien establishes statutory eligibility for voluntary removal,
the immigration judge will grant relief only upon a finding that
the alien merits “a favorable exercise of discretion.” In Re
Thomas, 21 I. & N. Dec. 20, 22 (BIA 1995).
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We are precluded by statute from reviewing BIA decisions to
grant or deny certain types of discretionary relief:
“Notwithstanding any other provision of law, no court shall have
jurisdiction to review--(I) any judgment regarding the granting of
relief under section 1182(h), 1182(I), 1229b, 1229c, or 1255 of
this title. . . .” 8 U.S.C.A. § 1252(a)(2)(B)(I) (emphasis added).
The BIA’s decision to deny voluntary departure under section 1229c
is specifically enumerated as one of the agency decisions not
subject to judicial review. See Ngarurih v. Ashcroft, 371 F.3d
182, 193 (4th Cir. 2004).
In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L.
No. 109-13, Div. B, 119 Stat. 231 (2005), which clarified the scope
of judicial review under section 1252(a)(2)(B): “Nothing in
subparagraph (B) . . . which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.” 8
U.S.C.A. § 1252(a)(2)(D). Thus, direct judicial review is
available for constitutional or legal questions arising from the
denial of the forms of discretionary relief enumerated in section
1252(a)(2)(B)(I). See Rodriguez-Castro v. Gonzales, 427 F.3d 316,
319 (5th Cir. 2005). However, BIA decisions denying relief as a
matter of discretion are still not subject to review. See Vasile
v. Gonzales, 417 F.3d 766, 769 (7th Cir. 2005).
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Zimunya unquestionably seeks review of the BIA’s discretionary
denial of her request to reinstate voluntary departure. She argues
that the BIA “abused its discretion by failing to consider all
positive factors in [her] case, and mischaracterized negative
factors.” Supplemental Brief of Petitioner at 3. Zimunya raises
no constitutional claims or claims involving the application or
interpretation of the Immigration and Nationality Act or the
agency’s regulations. Accordingly, we are without jurisdiction to
review the BIA’s denial of Zimunya’s request for reinstatement of
voluntary departure.
PETITION DENIED IN PART
AND DISMISSED IN PART
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