Sanchez-Ramirez v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-60942
Summary Calendar
LAUREANO SANCHEZ-RAMIREZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A26 925 298
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Laureano Sanchez-Ramirez (Sanchez) petitions this court for
review of the Board of Immigration Appeals’s decision to deny his
motion for reconsideration; previously, the Board of Immigration
Appeals (BIA) had denied his motion to reopen his removal
proceedings. Sanchez contends that the BIA incorrectly
determined that he had not complied with the requirements of 8
C.F.R. § 1003.2(c) by submitting newly discovered evidence in
support of his motion to reopen. Sanchez asserts that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-60942
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affidavit of support that he submitted with his motion to reopen
constituted newly discovered evidence because it was not
available until his joint sponsor executed it after the
conclusion of his hearing before the immigration judge (IJ).
This court reviews the BIA’s “denial of both a motion to
reopen and a motion for reconsideration under a highly
deferential abuse-of-discretion standard.” Singh v. Gonzales,
436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks
omitted); 8 C.F.R. § 1003.2(a). The decision will be upheld
unless it was “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational
approach.” Singh, 436 F.3d at 487 (internal quotation marks
omitted).
In the instant case, the BIA considered whether the
affidavit of support executed by Allen Gully on March 17, 2005,
qualified as new evidence that merited the exercise of its
discretion to grant reopening of Sanchez’s proceedings. In
denying Sanchez’s motion to reopen, the BIA correctly applied
§ 1003.2(c)(1), which limits the granting of a motion to reopen
to evidence that “is material and was not available and could not
have been discovered or presented at the former hearing.”
§ 1003.2(c)(1). The BIA concluded that Sanchez failed to show
that the affidavit was “new or previously unavailable evidence”
No. 05-60942
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because he failed to explain why Gully was not located or
presented during Sanchez’s hearing before the IJ.
The decision by the BIA was not unreasonable nor arbitrary.
The fact that the affidavit was executed after the conclusion of
Sanchez’s proceedings does not make it “new” or “previously
unavailable” evidence warranting a reopening of the proceedings.
See Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th Cir.
2005). Thus, the BIA’s conclusion, when denying Sanchez’s motion
to reconsider, that it had correctly determined he had not
complied with the requirements of § 1003.2(c)(1) was not an abuse
of discretion because Sanchez failed to explain why his new
evidence supporting the motion to reopen could not have been
discovered prior to the former proceeding. See Singh, 436 F.3d
at 487. Sanchez’s petition for review is DENIED.