                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1613




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"Sharma v. Atty Gen USA" (2006). 2006 Decisions. Paper 938.
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DPS-212                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-1613
                                  ________________

                               RAJ KUMAR SHARMA,

                                       Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                   Respondent
                       _________________________________

                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                             (Agency No. A72 432 452)
                   _______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 4, 2006

      BEFORE: FUENTES, VAN ANTWERPEN, and 1ROTH CIRCUIT JUDGES

                                 (Filed: June 7, 2006)

                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Raj Kumar Sharma, a native and citizen of India, petitions for review of an order



  1
  The Honorable Jane R. Roth assumed senior status on May 31, 2006.
of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

immigration proceedings. The Government moves for a summary affirmance of the

BIA’s order. We will grant the Government’s motion and deny the petition for review.

       In 1991, Sharma entered the United States without inspection. A notice to appear

was issued in 1998. Sharma conceded his removability for being present without being

admitted or paroled. He applied for asylum, withholding of removal, and relief under the

Convention Against Torture. Sharma claimed that he feared the police in India would

persecute him because they believed he supported the Sikhs. An Immigration Judge

(“IJ”) found Sharma not credible and denied his applications for relief. In 2002, the BIA

affirmed the IJ’s decision. Sharma did not file a petition for review. In 2005, Sharma

filed a motion to reconsider the BIA’s decision. The BIA found the motion untimely and

denied it. This Court denied Sharma’s petition for review of the BIA’s denial of

reconsideration.

       Sharma subsequently filed a motion to reopen the BIA’s decision. He conceded

the motion was untimely, but he maintained that he satisfied the exception to the filing

deadline based upon changed circumstances in India. Sharma stated that the Indian

government promulgated new anti-terrorism legislation that increased the power of law

enforcement agencies. He stated that the police have engaged in human rights abuses

with impunity. Sharma argued that his life is now at greater risk should he return to India

because the police believed he supported the Sikhs. Sharma further argued that the IJ’s

adverse credibility determination was incorrect.

                                             2
       In denying the motion to reopen, the BIA explained that, even if Sharma satisfied

the exception to the filing deadline based upon changed circumstances in India, he did not

establish prima facie eligibility for asylum. The BIA also construed Sharma’s motion to

reopen as a motion to reconsider its 2002 affirmance of the IJ’s decision denying his

applications for relief from removal. The BIA denied the motion to reconsider as

untimely and number-barred.

       Sharma filed a counseled petition for review and a motion for a stay of removal.

The Government moves for summary affirmance of the BIA’s decision. The Court

reviews the BIA’s denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft,

386 F.3d 556, 562 (3d Cir. 2004). Under this standard, the Court will reverse the BIA’s

decision only if it is arbitrary, irrational, or contrary to law. Id.

       The BIA correctly concluded that, even if Sharma satisfied the exception to the

filing deadline based upon changed circumstances in India, he did not establish prima

facie eligibility for asylum. See Guo, 386 F.3d at 563 (stating that the prima facie

standard requires the applicant to produce objective evidence showing a reasonable

likelihood that he can establish that he is entitled to relief). As recognized by the BIA,

the IJ had already found not credible Sharma’s claim that the police would persecute him

because they believed he supported the Sikhs. In his motion to reopen, Sharma argued

that, in making the adverse credibility determination, the IJ relied on minor

inconsistencies and was insensitive to his cultural differences. Sharma, however,

provided no examples of the alleged errors by the IJ. His conclusory arguments do not

                                                3
cast doubt on the IJ’s decision.

       In his response to the Government’s motion for summary affirmance, Sharma

argues that the BIA erred in relying on the IJ’s adverse credibility determination in

denying his motion to reopen under our decision in Guo. We disagree. The alien in Guo,

who was a Chinese citizen, sought asylum based upon a claim of religious persecution.

The IJ found her not credible. The alien then filed a motion to reopen based upon her

subsequent pregnancy and a claim that she would be persecuted for violating China’s

one-child policy. The Court concluded that the BIA erred in relying on the IJ’s adverse

credibility determination in evaluating the motion to reopen where that determination was

unrelated to the claim raised in the motion to reopen. Guo, 386 F.3d at 562. The present

case is distinguishable from Guo because Sharma’s motion to reopen is based upon the

same claim of persecution as his asylum application, which the IJ found not credible.

       Sharma also challenges the BIA’s conclusion that his motion to reopen, when

construed as a motion to reconsider the BIA’s 2002 affirmance of the IJ’s decision, is

number-barred. Sharma recognizes that the immigration regulations only allow the filing

of one motion to reconsider “any given decision.” See 8 C.F.R. § 1003.2(b)(2). Sharma

argues, however, that the regulations are not controlling because the Immigration and

Nationality Act is silent as to the permissible number of motions to reconsider a denial of

asylum. He notes that the statute only provides that an alien may file “one motion to

reconsider a decision that the alien is removable from the United States.” 8 U.S.C.

§ 1229a(c)(6)(A).

                                             4
         This argument lacks merit. Under Sharma’s reading of the statute, he would not be

permitted to file a motion to reconsider the denial of asylum at all. After all, under his

reading, the statute only authorizes the filing of a motion to reconsider a decision that an

alien is removable. We instead understand the statutory and regulatory framework to

allow an alien to file one motion to reconsider a prior decision. As the BIA correctly

held, Sharma has already moved once to have the original asylum decision reconsidered.

He was entitled to no more attempts to have the same decision reconsidered.

         Because this appeal does not raise a substantial question, the Government’s motion

for summary affirmance is granted. We will deny the petition for review.2




   2
       Sharma’s motion for a stay of removal is denied.

                                              5
