                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

Jamal v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2721




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                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEAL
              FOR THE THIRD CIRCUIT


                        No. 04-2721


                      MOGEB JAMAL,

                                   Petitioner

                              v.

     ALBERTO GONZALES, ATTORNEY GENERAL
            OF THE UNITED STATES*

   *Caption amended pursuant to Rule 43(c), Fed. R. App. P.

                                   Respondent




         On Petition for Review from an Order of the
               Board of Immigration Appeals
                        (A76-558-133)


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                        June 3, 2005

BEFORE: FUENTES, GREENBERG and COWEN, Circuit Judges

                    (Filed: June 28, 2005)


                          OPINION
COWEN, Circuit Judge.

       Mogeb Jamal (“Petitioner”) seeks judicial review of the denial by the Board of

Immigration Appeals (“BIA”) of his motion to reconsider its earlier decision denying his

motion to reopen removal proceedings. Because we conclude that Petitioner has failed to

demonstrate that the BIA abused its discretion in denying his motion to reconsider, we

will deny the Petition for Review.

                                             I.

       As we write solely for the parties, we briefly summarize the relevant background.

The former Immigration and Naturalization Service (“INS”)1 issued Petitioner a Notice to

Appear for removal proceedings. At a hearing before an immigration judge, Petitioner

conceded removal and declined to apply for asylum, withholding of removal, or

protection pursuant to the Convention Against Torture (“CAT”). He requested voluntary

departure, and sought a continuance to await the result of his pending labor certification

request. The immigration judge granted Petitioner’s request for voluntary departure, but

denied his motion for a continuance. Petitioner appealed the denial of a continuance to

the BIA, which summarily affirmed the removal order pursuant to 8 C.F.R. §

1003.1(e)(4). Petitioner did not petition this Court to review the BIA’s order. Instead, he

filed a motion with the BIA to reopen the removal proceedings and stay the deportation



   1
    On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and its functions were transferred to the Department of Homeland Security. See
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).

                                             2
order, based on changed circumstances in Yemen. He sought permission to pursue

applications for asylum, withholding of removal, and relief under the CAT. The BIA

denied Petitioner’s motion on March 17, 2004, noting that Petitioner failed to file any

applications for protection in contravention of 8 C.F.R. § 1003.2(c)(1), and that the tribal

conflict that underpinned Petitioner’s motion predated the commencement of his removal

proceedings, see id. Petitioner did not seek this Court’s review of this order, but

submitted a motion to the BIA for reconsideration of its denial of his motion to reopen.

He pointed out that the purported “changed circumstances” forming the basis for his

request for reopening was not the tribal conflict itself, but rather the death of his brother

resulting from this conflict, which occurred on January 19, 2004, after the immigration

judge issued an order. Nevertheless, on May 24, 2004 the BIA denied Petitioner’s motion

to reconsider for two reasons: (1) Petitioner’s failure to provide any evidence linking the

death of his brother and the ongoing tribal conflict with any of his claims for relief; and

(2) Petitioner’s failure to support his motion with applications for relief and evidentiary




                                              3
material as mandated by 8 C.F.R. § 1003.2(c).2 Petitioner timely filed a Petition for

Review of the May 24, 2004 order with this Court.

                                              II.

       The BIA had jurisdiction in this matter under 8 C.F.R. § 1003.1(b)(3) and 1003.2,

and we have jurisdiction to review the final order of removal under section 242(a)(1) of

the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1). See Chen v.

Ashcroft, 376 F.3d 215, 221-22 (3d Cir. 2004).

       As noted above, Petitioner never filed a Petition for Review of the BIA’s March

17, 2004 decision denying his first motion to reopen, or a Petition for Review of the

BIA’s January 26, 2004 order dismissing his appeal. Accordingly, we do not have

jurisdiction to consider Petitioner’s claim that the BIA abused its discretion by affirming

the immigration judge’s denial of a continuance. See 8 U.S.C. § 1252(b)(1) (“The

petition for review must be filed not later than 30 days after the date of the final order of

removal.”); Stone v. INS, 514 U.S. 386, 395 (1995) (“The filing of the reconsideration

   2
     Although entitled, “Motion to reconsider and remand on behalf of the respondent . . . ;
motion to remand and reopen for purposes of reopening removal proceeding based on
article 3 of the Convention Against Torture,” (App. at 18), the BIA construed Petitioner’s
second motion as one for reconsideration of its March 17, 2004 decision denying his first
motion to reopen. Because Petitioner’s second motion, while extremely vague, appears to
reargue the merits of his first motion to reopen and raises no new evidence or additional
changed circumstances, we construe this motion likewise. Indeed, Petitioner’s Petition
for Review characterizes this second motion exclusively as one for reconsideration. In
any event, 8 U.S.C. § 1229a(c)(6) provides that an alien may file only one motion to
reopen removal proceedings, absent circumstances not implicated here. 8 U.S.C. §
1229a(c)(6), amended on other grounds by Real ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231 (May 11, 2005); see also 8 C.F.R. § 1003.2(c)(2).

                                              4
motion does not toll the time to petition for review.”); id. at 394-35. Nor may we directly

entertain the merits of the BIA’s denial of Petitioner’s motion to reopen. We may,

however, review whether the BIA abused its discretion in denying Petitioner’s motion to

reconsider. See Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (reviewing denial of a

motion to reconsider for abuse of discretion).

       An abuse of discretion occurs when an incorrect legal principle is applied or

findings of fact are arbitrary and capricious or lacking in substantial evidence. Tipu v.

INS, 20 F.3d 580, 582 (3d Cir. 1994). We must uphold the BIA’s decision unless it was

“arbitrary, irrational, or contrary to law.” Id.; Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d

Cir. 2002).

                                            III.

       Petitioner raises two challenges to the BIA’s disposition of his motion for

reconsideration. He argues that the BIA abused its discretion by finding that he failed to

prove a nexus between his claim and his brother’s death in light of the record, and by

failing to discuss the factual underpinnings of his torture claim. We conclude that the

BIA did not abuse its discretion in denying Petitioner’s motion to reconsider the denial of

his motion to reopen.

       First, Petitioner disregards the BIA’s additional reason for denying his motion for

reconsideration; that in submitting his initial motion to reopen, Petitioner failed to comply

with 8 C.F.R. § 1003.2(c)(1). This provision requires that a motion to reopen proceedings



                                              5
for the purpose of submitting an application for relief be accompanied by “the appropriate

application for relief and all supporting documentation.” Id. The BIA expressly noted at

the outset of its March 17, 2004 denial of Petitioner’s motion to reopen that Petitioner

“declined to file Form I-589, application for protection of some sort in this country.”

(App. at 23.) Its May 24, 2004 denial of Petitioner’s motion to reconsider again relied on

Petitioner’s failure to “support[] his motion by an application for relief and evidentiary

material establishing his eligibility for such relief.” (App. at 5.) Petitioner was not in

compliance with the prescribed regulation. As such, it cannot be said that the BIA abused

its discretion in denying his motion to reconsider the denial of his procedurally infirm

motion to reopen. See Nocon, 789 F.2d at 1033 (holding that the BIA did not abuse its

discretion in denying a motion for reconsideration where petitioners failed to comply with

procedures governing motions for reconsideration). The regulations make clear that a

motion to reopen may be denied even if the moving party has set forth a prima face case

for relief. 8 C.F.R. § 1003.2(a).

       This analysis obviates the need to consider the BIA’s other reason for denying

Petitioner’s motion to reconsider; that he “failed to establish any nexus between his

brother’s recent death and his own asylum claim.” (App. at 5.) Were it necessary to

dispose of this Petition on this ground, however, we would arrive at the same conclusion.

8 C.F.R. § 1003.2(c) instructs that a motion to reopen shall not be granted “unless it

appears to the Board that evidence sought to be offered is material and was not available .



                                              6
. . at the former hearing.” Id. It is not disputed that the death of Petitioner’s brother in

Yemen, the event upon which his motions are based, occurred after the immigration judge

issued her order of removal. In observing, however, that Petitioner “failed to provide any

specific information regarding the cause and circumstances of his brother’s death,” (app.

at 5), it appears that the BIA did not consider the affidavit describing the tribal conflict

and his brother’s death to constitute “material” evidence warranting reopening. This is

not an abuse of discretion. Petitioner’s affidavit states that his tribe has been in conflict

with the Al Gaithi tribe since 1999, and that he learned from a January 19, 2004 telephone

call from his family in Yemen that his brother was killed in an accident along with eleven

others. His relatives, the affidavit explains, warned him repeatedly not to return home as

his life will be in extreme danger because of this incident. Significantly, the affidavit

does not detail the circumstances surrounding the death of Petitioner’s brother, and does

not relate this death to the situation facing Petitioner were he to return to Yemen. Indeed,

the affidavit characterizes the death of Petitioner’s brother as an accident. In light of the

dearth of information in this affidavit, it cannot be said that the BIA abused its discretion

in denying Petitioner’s motion to reconsider his motion to reopen. In short, the BIA

committed no reversible errors of law or fact in denying Petitioner’s motion to

reconsider.3

   3
    It is worth noting that the BIA’s March 17, 2004 denial of Petitioner’s motion to
reopen ignored the death of Petitioner’s brother as the rationale supporting reopening.
Instead, the BIA denied reopening in part because the tribal conflict mentioned in the
affidavit was present since 1999, before Petitioner declined to file applications for relief.

                                               7
                                           IV.

      For the foregoing reasons, the Petition for Review will be denied.




The BIA’s failure to address the death of Petitioner’s brother was an erroneous oversight.
In its order denying reconsideration, however, the BIA remedied this error and correctly
analyzed why the death of Petitioner’s brother was an inadequate basis for reopening.
Moreover, as noted, the BIA appropriately denied Petitioner’s motion to reconsider for
his failure to comply with the applicable procedural regulation.

                                            8
