Copto-Lavalle v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1674
VICTOR DE JESUS COPTO-LAVALLE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 12, 2010 Decided: August 25, 2010
Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.
Petition denied in part; dismissed in part by unpublished per
curiam opinion.
William J. Sanchez, WILLIAM J. SANCHEZ, PA, Miami, Florida, for
Petitioner. Tony West, Assistant Attorney General, Mark C.
Walters, Senior Litigation Counsel, Glen T. Jaeger, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor De Jesus Copto-Lavalle, a native and citizen of
Mexico, petitions for review of an order of the Board of
Immigration Appeals (“Board”) denying as numerically barred his
second motion to reopen. We dismiss in part and deny in part
the petition for review.
An alien may file one motion to reopen within ninety
days of the entry of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2009).
This time limit does not apply if the basis for the motion is to
seek asylum or withholding of removal based on changed country
conditions, “if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii). This court reviews the denial of a
motion to reopen for abuse of discretion. INS v. Doherty, 502
U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400
(4th Cir.), cert. denied, 130 S. Ct. 137 (2009). Motions to
reopen are “disfavored” because every delay works to the
advantage of the alien who wants to remain. Doherty, 502 U.S.
at 323. This court will reverse the Board only if the decision
is arbitrary, irrational or contrary to law. Mosere, 552 F.3d
at 400.
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We find the Board did not abuse its discretion in
denying Copto-Lavalle’s second motion to reopen because it was
numerically barred.
Insofar as Copto-Lavalle seeks to have this court
review the Board’s denial of his first motion to reopen, we are
without jurisdiction. Pursuant to 8 U.S.C. § 1252(b)(1) (2006),
Copto-Lavalle had thirty days from the date of the Board’s order
denying his first motion to reopen to petition this court for
review. 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). Further, it is “not subject to
equitable tolling.” Id.; see Fed. R. App. P. 26(b) (prohibiting
this court from extending the time to file “a petition to . . .
review an order of an administrative agency, board, commission,
or officer of the United States, unless specifically authorized
by law”). The Board’s order denying the first motion to reopen
was filed January 9, 2009. Copto-Lavalle did not file the
petition for review until June 15, 2009, or clearly beyond the
thirty-day period in which to file a petition for review. Thus,
this court is without jurisdiction to review the January 9, 2009
order.
Accordingly, we deny in part and dismiss in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
PETITION DENIED IN PART;
DISMISSED IN PART
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