Vitalik Boudaguian v. John D. Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4094
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Vitalik K. Boudaguian; Ofelia R. *
Boudaguian; Khristofor V. *
Boudaguian; Kristina V. Boudaguian, *
*
Petitioners, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
John D. Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: February 10, 2004
Filed: July 22, 2004
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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
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LOKEN, Chief Judge.
Vitalik Boudaguian and his wife Ofelia are ethnic Armenians who were born
in Azerbaijan and who moved in 1982 to another republic of the Soviet Union,
Latvia, after Vitalik completed his Soviet military obligation and received a degree
from a college in Yerevan, Armenia. The Boudaguians’ two children, Khristofor and
Khristina, were born in Latvia. The four family members entered the United States
from Latvia in 1995, overstayed their tourist visas, and applied for asylum and
withholding of removal, contending that, as Russian-speaking ethnic Armenians, they
faced constant discrimination, mistreatment, and persecution by Latvians after Latvia
declared its independence from the Soviet Union. See 8 U.S.C. §§ 1158(b)(1);
1231(b)(3).
The Immigration Judge (IJ) denied the Boudaguians asylum and withholding
of removal and granted them voluntary departure. See 8 U.S.C. § 1229c(b). After the
BIA dismissed their appeal of the IJ’s decision, the Boudaguians moved to reopen.
Treating the motion as one to reconsider and to reopen, the BIA denied the motion,
concluding that it neither demonstrated error in the BIA’s previous decision nor met
the heavy burden governing the reopening of applications for asylum and withholding
of removal. The Boudaguians petition this court for judicial review of the BIA’s
denial of their motion to reopen. We conclude the BIA did not abuse its discretion
and deny their petition for review.
1. Much of the Boudaguians’ brief on appeal is devoted to persuading us that
the BIA erred in initially upholding the IJ’s denial of asylum and withholding of
removal. In Stone v. I.N.S., 514 U.S. 386, 398-401, 405-06 (1995), the Supreme
Court held that Congress, in amending the Immigration and Nationality Act, intended
to depart from the normal rule that the timely filing of a motion to reconsider tolls the
time for appeal of the underlying order until the agency rules on the motion to
reconsider. Therefore, an order denying relief from deportation (now called removal)
is final when issued and must be appealed within the statutorily prescribed period.
Following Stone, Congress substantially rewrote the statute in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. But the wording of the relevant
judicial review provision is the same. Compare 8 U.S.C. § 1252(b)(6), with 8 U.S.C.
§ 1105a(a)(6) (1990). Accordingly, we lack jurisdiction to review the BIA’s initial
order because the Boudaguians did not file a timely petition for review of that order.
See Raffington v. I.N.S., 340 F.3d 720, 724 (8th Cir. 2003). Our jurisdiction is
limited to review of the BIA order denying the Boudaguians’ motion to reconsider its
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initial decision or to reopen the asylum proceedings. We review such orders for
abuse of discretion. See 8 C.F.R. § 1003.2(a); Nativi-Gomez v. Ashcroft, 344 F.3d
805, 807 (8th Cir. 2003).
2. Before the BIA, the Boudaguians’ motion to reopen primarily argued that
the evidence previously submitted to the IJ established that they suffered past
persecution and have a well-founded fear of future persecution in Latvia. Treating
this part of the motion as a motion to reconsider, the BIA denied it “because the
[Boudaguians] have not demonstrated any error in our decision of June 26, 2002, on
the record then before us, upon consideration of the contentions in the motion.”
The applicable regulation provides that a motion asking the BIA to reconsider
an adverse decision “shall state the reasons for the motion by specifying the errors of
fact or law in the prior Board decision and shall be supported by pertinent authority.”
8 C.F.R. § 1003.2(b)(1). In reviewing the denial of a motion to reconsider, “we will
find an abuse of discretion if the denial was made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible basis
(such as race).” Zhang v. I.N.S., 348 F.3d 289, 293 (1st Cir. 2003) (quotation
omitted). This is not a case like De Jimenez v. Ashcroft, 370 F.3d 783, 790 (8th Cir.
2004), where the petitioner’s motion to reconsider established that the BIA’s prior
decision had misapplied BIA precedent in refusing to consider petitioner’s evidence.
Here, the Boudaguians’ motion simply reargued whether the evidence established the
requisite persecution.
We decline the Boudaguians’ invitation to consider whether the BIA’s initial
order was correct in deciding whether the agency’s denial of a motion to reconsider
was an abuse of discretion. This level of review would be contrary to the Supreme
Court’s decision in Stone and would encourage aliens to improperly prolong the
removal process by filing motions to reconsider, instead of petitioning for immediate
judicial review of an initial adverse decision. Thus, there was no abuse of discretion.
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3. The Boudaguians’ motion to reopen also presented additional evidence
supporting their claim that they are not eligible to become naturalized Latvian
citizens, and tending to confirm that unknown Latvian assailants committed acts of
violence on members of the Boudaguian family in 1994 and 1995. The BIA treated
this part of the motion as a motion to reopen. The applicable regulation provides that
a motion to reopen “shall state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits or other evidentiary
material.” The motion may not be granted unless the new evidence “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). The BIA denied the motion to reopen, explaining:
We have considered the contentions in the present motion, including
that the [Boudaguians] are ineligible for citizenship in Latvia. With the
motion, the respondents have forwarded materials pertaining to Latvian
citizenship requirements and affidavits from two neighbors concerning
an incident in which a smoke bomb was thrown at the [Boudaguians’]
home for an unknown reason. The [Boudaguians] also have resubmitted
several items that we already evaluated in the context of the prior appeal
. . . . A motion to reopen is not a substitute for an appeal. It is not to be
used as an opportunity for a second effort at proving factual allegations.
By means of the assertions in the motion and the accompanying
documents, the [Boudaguians] have failed to satisfy the heavy
evidentiary burden relevant to reopening.
(Citations omitted.)
Motions to reopen are disfavored, especially in removal proceedings. See
Khalaj v. Cole, 46 F.3d 828, 834 (8th Cir. 1995). On appeal, the Boudaguians argue
that the BIA abused its discretion by refusing to consider new evidence that they are
ineligible for Latvian citizenship. We disagree. First, the BIA expressly stated that
it considered the new evidence. Second, citizenship issues were carefully considered
by the IJ and by the BIA in the first appeal. Newly independent Latvia faces serious
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issues regarding the rights of long-standing permanent residents who are not ethnic
Latvians, and whether those non-citizens will be eligible for Latvian citizenship. In
its first decision upholding the IJ’s findings that the Boudaguians did not suffer past
persecution and did not prove a well-founded fear of future persecution in Latvia, the
BIA observed that Vitalik Boudaguian “would be able to apply for Latvian
citizenship starting in 2003.” The motion to reopen did not establish that was an error
of fact, only that the Boudaguians may not qualify for citizenship because, for
example, they do not presently speak the Latvian language. As this evidence does not
undermine the essential findings that the Boudaguians failed to prove the requisite
well-founded fear of persecution, the BIA did not abuse its discretion in concluding
that the Boudaguians “have failed to satisfy the heavy evidentiary burden relevant to
reopening.”
4. At oral argument, the Boudaguians requested reinstatement of the thirty-day
period of voluntary departure granted by the BIA in its initial decision of June 26,
2002. The applicable regulation provides that the filing of a motion to reopen “shall
not stay the execution of any decision made in the case . . . unless a stay of execution
is specifically granted.” 8 C.F.R. § 1003.2(f). As the BIA granted no such stay, the
thirty-day voluntary departure period expired well before the Boudaguians filed this
petition for judicial review. Assuming we have the authority under IIRIRA to
reinstate an expired grant of voluntary departure, which we doubt, we decline to do
so because the Boudaguians did not timely seek a stay from this court. See Rife v.
Ashcroft, No. 03-2127, 2004 WL 1496971, at *8 (8th Cir. July 7, 2004).
For the foregoing reasons, we deny the Boudaguians’ petition for review in all
respects.
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