          United States Court of Appeals
                     For the First Circuit


No. 12-2193

                     OLUKAYODE GANIYU SAKA,

                          Petitioner,

                               v.

                      ERIC H. HOLDER, JR.,
                UNITED STATES ATTORNEY GENERAL,

                          Respondent.



               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                 Torruella, Lipez and Thompson,
                         Circuit Judges.



     Stephen L. Baruffi, on brief for petitioner.
     Joanna L. Watson, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Principal Deputy Assistant Attorney General, Civil
Division, and Jamie M. Dowd, Senior Litigation Counsel, on brief
for respondent.



                       December 23, 2013
               TORRUELLA, Circuit Judge. Olukayode Ganiyu Saka ("Saka")

entered the United States using a false name and fraudulently

obtained visa.         Upon discovery of this fraud, removal proceedings

commenced.       Citing fear of religious persecution, Saka filed for

withholding of removal and protection under the Convention Against

Torture ("CAT"). The Immigration Judge ("IJ"), in a decision later

affirmed by the Board of Immigration Appeals ("BIA"), denied this

relief and ordered removal. Thereafter, the BIA also denied Saka's

motion    to    reopen,    which       added    a   claim    for     asylum,   and    his

subsequent motion to reconsider.               Saka now appeals.         Insofar as it

relates   to     his    motion    to    reopen,       we   dismiss    this   appeal   as

untimely.       Taking up only his motion to reconsider, we find no

evidence of legal error nor an abuse of discretion, and thus, we

deny Saka's petition for review.

                                   I. Background

A. Removal Proceedings

               Saka, a citizen of Nigeria, entered the United States on

June 29, 2002, using a doctored passport and fraudulently obtained

visa bearing the name Olukayode Olapido-Wemimo.                      Five years later,

still    using    this    false    name,       Saka    filed   an     application     for

naturalization.          A close review of his application eventually

revealed Saka's true identity, and the Department of Homeland

Security commenced removal proceedings, alleging that Saka had




                                          -2-
procured admission into the United States by means of fraud or

willful misrepresentation.

          During removal proceedings, Saka admitted to falsifying

his entry documents and conceded removability but, citing fear of

persecution   in   Nigeria   based    on   his     2003   conversion   to

Christianity, filed for withholding of removal and CAT relief.1

Saka, who had been raised as a practicing Muslim, testified that

his conversion had prompted death threats from angry family members

in Nigeria, who believed him an apostate.        He suggested that these

threats of violence fit a larger pattern of religious persecution

in which the Nigerian government was acquiescent.          Saka did not

seek asylum at this time, informing the IJ that he was aware any

claim would be outside the one-year deadline for asylum petitions.

          Ultimately, the IJ determined that Saka's testimony was

not credible given his past use of falsified documents and his

history of making dishonest statements to immigration officials.

The IJ also found insufficient evidence that Christians were

subject to religious persecution in Nigeria based on their beliefs.

Moreover, even had such persecution been proven, the IJ questioned

whether Saka was indeed a practicing Christian.       Specifically, the

IJ expressed significant skepticism as to why, although claiming to

have become a devout Christian in 2003, Saka was only baptized in


1
   Saka also sought alternative relief in the form of voluntary
departure. The IJ's denial of this request was not appealed and is
not relevant here.

                                -3-
June 2009 -- three months after removal proceedings began.               On

July 9, 2010, the IJ ordered removal.      The BIA affirmed.

B. Motion to Reopen

          On March 19, 2012, Saka filed a motion to reopen, citing

changed country conditions.       In addition to claiming continued

eligibility for withholding of removal and CAT relief, Saka argued

that he was newly eligible for asylum because changed country

conditions constitute an exception to the one-year deadline for

such claims. Saka's motion was supported by evidence purporting to

show increased persecution of Christians in Nigeria. Specifically,

the evidence pertained to the 2009 Boko Haram Uprising, during

which religiously motivated violence left nearly 1,000 Nigerians

dead. Saka also provided affidavits from his minister stating that

he knew Saka to be a practicing Christian, and from a cousin in

Nigeria corroborating Saka's claim that family members remained

angry about his conversion.

          The   BIA   denied   this   motion,   finding   that   both    the

affidavits and the vast majority of news articles provided by Saka

were not newly available, but instead contained information that

could have been provided during his initial proceedings.                Even

assuming that the small number of articles that post-dated Saka's

initial proceedings could prove increased persecution, the BIA

again stated that Saka had offered inadequate proof that he "is or

would be perceived to be Christian" if returned.          A written order


                                  -4-
denying Saka's motion was published on May 10, 2012.           This order,

however, referenced only withholding of removal and CAT relief. No

mention was made of Saka's asylum claim; a mistake that would

become paramount in later stages of these proceedings.

C. Motion to Reconsider

            On June 8, 2012, Saka filed a motion to reconsider,

asserting that the BIA had erred by: (1) ignoring accounts of

significantly increased persecution of Christians in Nigeria, (2)

making improper credibility determinations illustrative of an

implicit bias against his claims, and (3) failing to address his

claim for asylum.    The BIA denied this motion, affirming its prior

determination that Saka's evidence was not newly available and did

not show that he was, in fact, a devout, practicing Christian.            It

also    denied   making   any   improper     credibility   determinations,

reasoning that any evidence discounted in its earlier decision was

ignored solely on the basis that it was not newly available.

            In contrast, the BIA admitted that it had erred by

failing to address Saka's asylum claim, but ultimately found this

error   harmless.     The   BIA    pointed    out   that   under   8   C.F.R.

§ 1003.2(c)(1) a timely claim for asylum would face the same

standard for reopening as Saka's other claims for withholding of

removal and CAT relief.           An untimely application for asylum,

however, would face an even higher burden, requiring proof of

changed country conditions under 8 U.S.C. § 1158(a)(2)(D).             Thus,


                                     -5-
having failed to present newly available evidence sufficient to

reopen under the more forgiving standard, the BIA reasoned that

Saka would have necessarily failed to meet the burden for raising

his untimely asylum claim as well.     Because the BIA found this

error to lack materiality, it concluded that reconsideration was

unnecessary.    A final order denying Saka's motion was entered on

September 4, 2012.

                           II. Discussion

           On October 2, 2012, Saka sought appellate review of both

his motion to reopen and his subsequent motion to reconsider.    We

take up each motion in turn.

A. Motion to Reopen

           Petitioners seeking review of a final BIA order before

this court must abide by a strict thirty-day filing deadline.

8 U.S.C. § 1252(b)(1); Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir.

2004).   This deadline runs from the time a final order is entered;

subsequent motions before the BIA do not toll or extend it.   Zhang

v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (citing Stone v. INS, 514

U.S. 386, 405-06 (1995)). Because this deadline is a jurisdictional

requirement, we are strictly bound to dismiss petitions filed

beyond its outer limit.    Ven, 386 F.3d at 359 (citing Zhang, 348

F.3d at 292).

           Saka's appeal was filed approximately five months after

the BIA entered a written order denying his motion to reopen, well


                                -6-
beyond the deadline.     Nonetheless, seizing upon the BIA's failure

to explicitly resolve his claim for asylum, Saka argues that we

retain jurisdiction.     Citing a Ninth Circuit case, Go v. Holder,

640 F.3d 1047, 1051 (9th Cir. 2011), he argues that motions remain

live so long as any possibility of relief remains.                     See id.

(finding jurisdiction appropriate despite late filing where, in

ruling on the motion, the BIA remanded one of three claims for

further proceedings). Applying Go's reasoning, Saka theorizes that

the BIA's order denying his motion to reopen was not final because

it did not specifically foreclose his claim for asylum, thus

leaving open some possibility of relief.               Under this theory, the

motion to reopen became final only on September 4, 2012, when -- in

ruling on his subsequent motion to reconsider -- the BIA finally

dismissed Saka's asylum claim.

           We   are   unconvinced.          Whatever    the   merits   of   Go's

reasoning, we are neither bound by its precedent nor unable to

easily distinguish it from the case at hand.              Here, no portion of

Saka's claim was remanded for further consideration, and the BIA in

no way indicated that additional proceedings were necessary.                  In

contrast, the BIA's order unequivocally stated that "[t]he motion

to reopen is denied."           This blanket denial is significantly

distinct   from   the   facts    of   Go,     which     fit   neatly   into   an

administrative scheme that allows the BIA to "return a case to

. . . an immigration judge for such further action as may be


                                      -7-
appropriate, without entering a final decision on the merits."

8 C.F.R. § 1003.1(d)(7).

             Simply   put,   Saka   sought   to   have   his    proceedings

reopened, and the BIA definitively declined to do so. Although the

BIA's order failed to make specific mention of Saka's asylum

petition, it clearly intended to issue a final denial of all of his

claims.   Indeed, had Saka timely appealed the denial of his motion

to reopen we would have had jurisdiction, if only to remand it to

the BIA to properly address the asylum claim.                  See Halo v.

Gonzales, 419 F.3d 15, 18-20 (1st Cir. 2005) (finding remand

appropriate where the BIA failed to adequately articulate its

reasons for denying asylum).        As such, we find that despite the

BIA's failure to explicitly dismiss Saka's asylum claim, its

May 10, 2012 order did not reasonably suggest any continuing

possibility of relief on this motion to reopen.2




2
    Although the question here involves the finality of an
administrative decision, our precedent regarding finality in the
judicial context is informative. In that posture, we have
recognized that decisions which are ambiguous, Alman v. Taunton
Sportswear Mfg. Corp., 857 F.2d 840, 844 (1st Cir. 1988), or hold
over issues for future consideration, United States v. Metro. Dist.
Comm'n, 847 F.2d 12, 14 (1st Cir. 1988), may not be final. Because
the BIA's order bears no hallmarks of ambiguity and is clearly
intended to fully resolve Saka's petition, see id., this precedent
further supports our holding. Another accepted arbiter of judicial
finality, that there be nothing left to do but execute the
judgment, see State St. Bank & Trust Co. v. Brockrim, Inc., 87 F.3d
1487, 1490 (1st Cir. 1996), also gives credence to our finding.
Had no motion to reconsider been filed from the BIA's denial, Saka
would have become immediately available for removal.

                                    -8-
            Moreover, adopting Saka's argument in practice would

render void the rule that subsequent motions before the BIA cannot

toll the thirty-day deadline for judicial appeals.              See Zhang, 348

F.3d   at   292.      It    is    more   than   clear   that   "a   motion   for

reconsideration posits that the decider -- here, the BIA -- made

some sort of error in the earlier decision."             Liu v. Mukasey, 553

F.3d 37, 39 (1st Cir. 2009).             Equally well-accepted is that such

error may take the form of "an argument or aspect of the case that

was overlooked."      Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 70

(1st Cir. 2013) (emphasis added) (quoting Asemota v. Gonzales, 420

F.3d 32, 33 (1st Cir. 2005)).              Thus, motions to reconsider may

commonly    proceed        on    the   theory   that    the    agency's   prior

determination ignored or omitted some legal claim.

            Yet, Saka would have us find that in all such cases the

appeals deadline is held over until that claim is definitively

resolved.   While dressed up in the language of finality, what this

argument proposes is no more than a form of tolling.                  Finality

would come only when the BIA ruled on the subsequent motion to

reconsider, effectively pausing the appeals-deadline clock in the

interim.    We refuse to adopt a rule that would wreak such havoc on

the accepted relationship between administrative and judicial

review of immigration proceedings.

            Finding that Saka's appeal from the denial of his motion

to reopen is untimely, we dismiss.


                                         -9-
B. Motion to Reconsider

          Because Saka's appeal from the denial of his motion to

reconsider is timely, we review it on the merits.3         We review the

BIA's denial of a motion to reconsider for abuse of discretion.

Nascimiento v. INS, 274 F.3d 26, 28 (1st Cir. 2001); see also

Lasprilla v. Ashcroft, 365 F.3d 98, 99 (1st Cir. 2004). Under this

deferential standard, we uphold decisions unless they are "made

without   a   rational    explanation,     inexplicably   depart[]     from

established policies, or rest[] on an impermissible basis."

Nascimiento, 274 F.3d at 28.     Any error of law is, inherently, an

abuse of discretion.     Top Entm't, Inc. v. Torrejón, 351 F.3d 531,

533 (1st Cir. 2003).

          Saka's   main    argument   on    appeal   is   that   the    BIA

impermissibly attempted to explain away its failure to resolve his

asylum claim with "post hoc rationalization[s]."          He asserts that



3
   We do not believe taking up review of the merits in any way
contradicts our recent decision in Charuc v. Holder, No. 13-1504,
2013 WL 6335878 (1st Cir. Dec. 6, 2013).       That case found no
jurisdiction to review a motion to reconsider where the underlying
claim for relief -- an untimely motion asking the BIA to employ its
discretionary power to undertake sua sponte review outside the
statutory deadline -- was wholly discretionary. Id. at *2. Where,
as here, we lack jurisdiction over the underlying claim only
because no timely appeal was taken from that decision, not because
the discretionary nature of the relief sought made the agency's
decision unreviewable, we believe our jurisdiction over a timely
appeal from a subsequent motion to reconsider remains. See, e.g.,
Zhang, 348 F.3d at 292 (taking up review of a timely filed appeal
from the denial of a motion to reopen and a motion to reconsider
despite finding a lack of jurisdiction to review the BIA's initial
denial of relief).

                                  -10-
the BIA's determination that its error was immaterial runs afoul of

SEC v. Chenery Corp., 318 U.S. 80 (1943), which requires that

agency   determinations   clearly   delineate   the   basis   for   their

holdings.    In support of this theory, Saka cites a number of our

opinions remanding issues to the BIA for failure to clearly

substantiate a legal basis for its decision.      See, e.g., Seong v.

Holder, 677 F.3d 484, 489 (1st Cir. 2012); Kadri v. Mukasey, 543

F.3d 16, 21-22 (1st Cir. 2008).

            We reject this argument, as it significantly misconstrues

the applicability of these cited holdings to the instant case.

Without a doubt, judicial review is predicated on the requirement

that "agencies provide reasoned bases for their decision[s]."

Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003) (citing Chenery

Corp., 318 U.S. at 196-97).         This case, however, presents no

question concerning the scope of judicial review.         The issue on

appeal focuses on whether the BIA acted appropriately in resolving

an error originating from an earlier BIA decision.      The holding of

Chenery Corp. simply does not govern an administrative agency's

review of its own prior decision.       Cf. Lasprilla, 365 F.3d at 100

(holding that the BIA need not even "explain its reasons when

deciding a motion to reconsider"); Albathani, 318 F.3d at 377

(holding that, so long as a rational basis was set forth in some

stage of agency proceedings, the BIA may affirm IJ decisions




                                 -11-
without an opinion).4      Therefore, we find no indication that the

BIA's decision to assess the materiality of its prior error in

ruling on a motion to reconsider was, itself, in error.         See Liu,

553 F.3d at 40 (finding the denial of a motion to reconsider

appropriate   based   on   petitioner's   "fail[ure]   to   identify   any

material error of law or fact in the earlier decision").

          Next, we turn to whether the BIA's ultimate conclusion

was an abuse of discretion.     Noting that "the purpose of a motion

to reconsider is not to raise new facts," Zhang, 348 F.3d at 293,

we see no such abuse in the BIA's materiality analysis.            Where

legal claims are predicated on identical facts and are reviewed

under the same standard, it is more than reasonable to hold that

where one claim falls, the other falls with it.        See, e.g., Amouri

v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).       Having affirmed its

earlier determination regarding Saka's failure to present new

evidence,5 the BIA noted that -- at a minimum -- Saka's claim for


4
   It is unclear whether Saka is now attempting to construe his
motion to reconsider as a sort of motion to remand. As a practical
matter, however, any such attempt is inapt. Saka never brought his
asylum petition before the IJ; it was filed initially with the BIA
as part of his motion to reopen. Moreover, motions to remand are
generally based on the presentation of new evidence, and are
consequently treated by our court as motions to reopen. Morgan v.
Holder, 634 F.3d 53, 60 (1st Cir. 2011). Therefore, even were such
an alteration possible, not only would our review still proceed
under an abuse-of-discretion standard, see id. at 61, but Saka
would face the numerical bar applicable to such motions, Raza v.
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).
5
   Because our focus is limited to Saka's motion to reconsider, we
do not directly review the BIA's determination, made in its denial

                                  -12-
asylum would have faced the same standard for reopening that his

other claims had already failed. See 8 C.F.R. § 1003.2(c)(1). More

precisely, the BIA reasoned, the standard for his asylum claim

would actually be stricter, given that it had not been filed during

initial proceedings and was admittedly untimely.       See 8 U.S.C.

§ 1158(a)(2)(D). Far from irrational, the BIA's conclusion appears

to have fully considered and reasonably applied the relevant legal

standards.     Thus, we are untroubled by the BIA's decision to

resolve Saka's claim of legal error without reconsideration.

             Saka's final two claims of error we reach only briefly,

as they are clearly not meritorious.         First, he attempts to

construct legal error from the BIA's refusal to apply Ninth Circuit

precedent to this case.    This argument lacks foundation.   Although

the BIA could have chosen to seek interpretative guidance from our

sister circuits, the decision not to do so is no way an error of

law, much less an abuse of discretion.    See Kechichian v. Mukasey,

535 F.3d 15, 22 (1st Cir. 2008).

             We similarly find lacking Saka's claim that the BIA

demonstrated an implicit bias against him by neglecting evidence

and undertaking improper credibility determinations.    For one, we

disagree that the BIA was incorrect to refer to Saka's supplemental

affidavits and corrected I-589 as "The Corrected Mistakes."         A



of Saka's motion to reopen, that he did not present newly available
evidence.

                                 -13-
simple review of the administrative record makes clear that Saka

himself, in filing these documents, titled them "The Corrected

Mistakes."     While we doubt such terminology would substantiate an

abuse of discretion regardless, we are more than certain it does

not do so here.

             For another, we reject Saka's suggestion that the BIA, by

referencing the IJ's adverse credibility determination, made an

improper factual finding.      This argument starts from the flawed

premise that the BIA had previously rejected the IJ's adverse

credibility determination.         Even a cursory review of the record

reveals that is not the case.         The BIA, in its initial opinion

affirming the IJ, simply did not reach the issue of credibility,

finding sufficient other reasons to dismiss.         No later opinion

questioned the IJ's determination, and the BIA did not err by

referencing this settled finding when considering whether its

motion to reopen had given proper weight to Saka's evidence.

                            III.    Conclusion

             For the reasons stated herein, Saka's petition to review

his motion to reopen is dismissed, and the petition to review his

motion to reconsider denied.

             Denied.




                                    -14-
