Workineh v. BICE

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 14, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-60553
Summary Calendar
TIGISTU WORKINEH,
Petitioner,
versus
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A29574121 )
_______________________________________________________
Before REAVLEY, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner Tigistu Workineh came to the United States from Ethiopia in 1989.
Shortly after arriving here he learned that several of his political associates had been
arrested and executed following a failed coup attempt on the Ethiopian government.
*
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not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Workineh immediately thereafter applied for asylum. In 1991, the government allegedly
responsible for the execution of his associates was deposed. On this basis the
immigration judge (“IJ”) concluded that Workineh no longer had a well-founded fear of
persecution and denied his request for asylum. Some eight years later the Board of
Immigration Appeals (“BIA”) affirmed, and three months after that Workineh moved to
reopen deportation proceedings. The BIA denied that motion, from which Workineh
made a timely appeal to this court. For the reasons that follow, we deny the petition for
review.
1. This case is governed by the transitional rules to the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110
Stat. 3009, 3546-3724 (Sept. 30, 1996). Under § 309(c)(1) of the IIRIRA, any
deportation proceeding initiated before April 1, 1997, and in which a final order of
deportation or exclusion was entered after October 30, 1996, is governed by the
transitional rules. These rules require, among other things, that a petition for review of a
final order of deportation or exclusion be filed not later than 30 days of the date of the
order. See IIRIRA § 309(c)(4)(C); Ibrik v. INS, 108 F.3d 596, 597 (5th Cir. 1997) (per
curiam). Because Workineh’s petition was filed more than 30 days after the date of the
order, we do not have jurisdiction to review the final order of deportation. See id.
However, Workineh did make a timely petition for review of the BIA’s refusal to reopen
deportation proceedings. We therefore have jurisdiction to review the BIA’s refusal to
reopen, see Lara v. Trominski, 216 F.3d 487, 495 n.10 (5th Cir. 2000), although our
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scope of review is extremely narrow: we utilize a highly deferential “abuse of discretion”
standard, see id. at 496.
2. We note that the BIA construed Workineh’s motion to reopen as both a
motion to reopen and a motion to reconsider. This the BIA has discretion to do. See 8
C.F.R. § 3.2(a) (2002). However, the BIA’s decision to entertain a motion to reconsider
the final deportation order--or, in this case, to construe a motion to reopen as a motion to
reconsider--does not affect this court’s jurisdiction to review that same order. The
Supreme Court has held that the filing of a motion to reconsider does not render the
BIA’s order of deportation non-final for purposes of judicial review. See Stone v. INS,
514 U.S. 386, 394 (1995). Likewise, the BIA’s discretionary decision to revisit its order
of deportation does not renew or extend the period to seek review of that order. Being
that the time to seek judicial review of the final order of deportation had expired, to the
extent Workineh’s motion requested reconsideration of that order this court does not have
jurisdiction to review it.1
3. Workineh argues that he is still at risk of persecution by the new
government, and he submitted evidence to this effect in the initial deportation
proceedings, which the BIA acknowledged. Workineh claims that “a great deal more” is
1
Workineh devotes the bulk of his brief to the question whether the BIA
erroneously charged him with proving a well-founded fear of persecution, rather than requiring
the Attorney General to negate Workineh’s presumption of having a well-founded fear of
persecution arising from past persecution. This argument goes to the merits of the BIA’s
decision. For the reasons stated above, we do not have jurisdiction to review it.
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known about the new government since the BIA affirmed the decision of the IJ. Along
with his motion to reopen, Workineh submitted media accounts and other background
information about Ethiopia, all of which tend to support his claim that persons of his
ethnicity or political views remain at risk of persecution. However, this material was
cumulative to that which was offered before. Accordingly, the BIA did not abuse its
discretion in refusing to reopen proceedings on the basis of Workineh’s new evidence.
4. Also included in Workineh’s motion to reopen was a request that the BIA
extend the period for voluntary departure. The IJ afforded Workineh 90 days to leave the
United States, and the BIA extended that period another 30 days following its affirmance
of the IJ’s decision. In denying the motion to reopen, the BIA concluded that it did not
have the power to order a further extension. The BIA was correct: if the IJ provided more
than 30 days for voluntary departure, the alien is to be only given an additional 30 days to
depart following entry of the BIA’s decision. See Matter of Chouliaris, 16 I. & N. Dec.
168, 170 (BIA 1977). Further extension of the period for voluntary departure is left to
the discretion of the district director of the Immigration and Naturalization Service. See
Shaar v. INS, 141 F.3d 953, 958 (9th Cir. 1998) (citing 8 C.F.R. § 244.2). Workineh
never petitioned the district director for such an extension.
The petition for review is DENIED.
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