Nelson K. Luswata v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2599
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Nelson Kikubira Luswata, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
John Ashcroft, Attorney General of *
the United States of America, * [UNPUBLISHED]
*
Respondent. *
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Submitted: May 7, 2004
Filed: May 13, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Nelson Luswata, a native and citizen of Uganda, petitions for review of an
order of the Board of Immigration Appeals (BIA) denying his motion to reopen
removal proceedings. Luswata argues the BIA erred in not following its established
standard of review in deciding his motion to reopen, not considering his newly
acquired evidence that was unavailable when he appeared before the immigration
judge, and not issuing a written decision revealing the rationale for its decision to
deny his motion.
After careful consideration, we conclude that the BIA did not abuse its
discretion in denying the motion, see 8 C.F.R. § 1003.2(a) (BIA has discretion to
reopen), because Luswata had not shown that the new evidence “was not available
and could not have been discovered or presented at the [removal] hearing,” 8 C.F.R.
§ 1003.2(c)(1). See INS v. Abudu, 485 U.S. 94, 107-08 (1988) (motions to reopen
deportation proceedings are disfavored because of strong public interest in bringing
litigation to close); Raffington v. INS, 340 F.3d 720, 721, 724 (8th Cir. 2003)
(standard of review; court reviewing denial of motion to reopen does not have
jurisdiction to review underlying order). To the extent Luswata asserts a due process
challenge to the BIA’s streamlined-review procedure, the argument is unavailing. Cf.
Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003) (concluding affirmance
without opinion of immigration judge’s decision does not violate alien’s due process
rights).
Accordingly, we deny the petition.
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