                                                        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.

                         --------------------
               Petition for Review of an Order of the
                     Board of Immigration Appeals
                         BIA No. A26 925 298
                         --------------------

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this opinion should not be published and is not precedent except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
                                -2-

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
                                 -3-

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.
