          United States Court of Appeals
                      For the First Circuit

No. 12-1121

                   JESUS ARISTE MARTINEZ-LOPEZ,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                    Boudin,* Selya and Stahl,
                         Circuit Judges.


     Sarita Rivera-Sasa and Rivera Sasa Immigration Law Offices on
brief for petitioner.
     Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation and Jem C. Sponzo, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.


                         January 4, 2013




     *
      Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion.     The remaining two panelists
issued the opinion pursuant to 28 U.S.C. § 46(d).
            SELYA, Circuit Judge.         This petition for judicial review

poses a question of first impression in this circuit: may an alien

whose application for withholding of removal has been denied by the

Board of Immigration Appeals (BIA) proffer, as the basis for a

motion to reconsider, a ground for relief which, though previously

available, was not previously asserted?                     The BIA answered this

question in the negative, and so do we.

            The     petitioner,      Jesus     Ariste       Martinez-Lopez,    is    a

Salvadoran     national      who    entered     the     United    States      without

inspection     in    2004.        Approximately       three     years    later,     the

Department of Homeland Security placed him in removal proceedings.

See   8   U.S.C.     §   1182(a)(6)(A)(i).            The    petitioner     conceded

removability and cross-applied for asylum, withholding of removal,

and protection under the United Nations Convention Against Torture

(CAT).

            At a hearing before an immigration judge (IJ), the

petitioner testified that he left El Salvador to avoid the violence

endemic in gang recruitment and that he fears returning because

such violence persists.            He added that his younger siblings and

nephews,   who      remain   in    El   Salvador,     have     been     targeted   for

recruitment.      The gangs persevere in their enlistment efforts even

though the petitioner's family (himself included) is composed

entirely of practicing Christians and the gangs purport to respect

Christian values.


                                         -2-
            The IJ made no specific credibility determination, and we

will assume that the IJ deemed the petitioner's testimony generally

credible. See id. § 1229a(c)(4)(C). The IJ nonetheless found that

being targeted for gang recruitment, without more, did not afford

a sufficient basis for the relief requested.          Consequently, the IJ

denied the petitioner's cross-application and entered an order of

removal.

            The petitioner appealed to the BIA.1           He noted that,

pursuant to statute, the Attorney General must withhold removal

when "the alien's life or freedom would be threatened . . . because

of   the   alien's   race,   religion,    nationality,    membership   in   a

particular      social   group,    or     political      opinion."      Id.

§ 1231(b)(3)(A).     "[W]orking Salvadoran male[s] who [were] not []

gang member[s] and who refuse[] to join [] gang[s]," he asserted,

constitute a "particular social group."        Thus, threats to his life

or freedom because of his membership in that group precluded his

removal.     The BIA rejected this assertion and affirmed the IJ's

decision, holding that persons who resist gang recruitment do not

constitute a "particular social group," membership in which would

bar removal.2


      1
       The petitioner did not contest either the denial of his
asylum application (which had been found to be time-barred) or the
denial of CAT protection.    Consequently, we eschew any further
reference to those claims.
      2
        This holding appears to be consistent with relevant
precedent. See, e.g., Mendez-Barrera v. Holder, 602 F.3d 21, 26-27

                                    -3-
              The petitioner did not file a petition for judicial

review   of    this      decision   within     the    time   allotted.      See    id.

§ 1252(b)(1).       He did, however, file a timely motion to reconsider

the order denying withholding of removal.                 See id. § 1229a(c)(6);

8 C.F.R. § 1003.2(b).           In support, he argued, for the first time,

that his family constituted a particular social group and that he

feared persecution on account of his family membership.                     He also

argued, again for the first time, that he feared persecution based

on his (and his family's) strong religious beliefs.

              The     BIA       denied   the         petitioner's      motion      for

reconsideration because the motion did not identify any error of

fact   or     law   in    the    BIA's   original       decision.        Rather,   it

improvidently attempted to inject into the case new theories of

relief not previously asserted.                Summarizing its position with

conspicuous clarity, the BIA declared that a "motion to reconsider

is not a vehicle for a second attempt at an appeal to raise new

arguments which could have been, but were not, previously raised."

              This timely petition for judicial review followed.                   The

only ruling under review is the BIA's denial of the motion to

reconsider; the original order denying withholding of removal is

not before us.

              The statute authorizing motions to reconsider in the

immigration context is 8 U.S.C. § 1229a(c)(6).                      An implementing


(1st Cir. 2010).

                                         -4-
regulation, 8 C.F.R. § 1003.2(b), elaborates upon this baseline

provision.   Under the terms of the regulation, "[a] motion to

reconsider shall state the reasons for the motion by specifying the

errors of fact or law in the prior [BIA] decision and shall be

supported by pertinent authority."    Id.

          Our review of the denial of a motion to reconsider is for

abuse of discretion.    See INS v. Doherty, 502 U.S. 314, 323-24

(1992); Liu v. Mukasey, 553 F.3d 37, 40 (1st Cir. 2009).    This is

a deferential standard, and we will find an abuse of discretion

only when the "denial was made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis."   Zhang v. INS, 348 F.3d 289, 293 (1st Cir.

2003) (internal quotation marks omitted).

          The petitioner envisions an abuse of discretion in the

BIA's supposed departure from the policy limned in In re Cerna, 20

I. & N. Dec. 399, 402 n.2 (BIA 1991) (describing a motion to

reconsider as "a request that the [BIA] reexamine its decision in

light of additional legal arguments, a change of law, or perhaps an

argument or aspect of the case which was overlooked" (internal

quotation marks omitted)).    In the petitioner's view, his new

theories of relief comprise "additional legal arguments" within the

Cerna framework.

          The passage of time has eclipsed the petitioner's plaint.

In Cerna, the BIA was applying an older, more fluid version of the


                                -5-
regulation elaborating upon the elements of a motion to reconsider.

Id. at 401-02 (citing 8 C.F.R. § 3.8 (1991) (amended 1996)).

Unlike the current version, the regulation then in force did not

require that motions to reconsider "specify[] the errors of fact or

law in the prior [BIA] decision."      8 C.F.R. § 1003.2(b) (emphasis

supplied).   Instead, the regulation merely required that a motion

to reconsider "state the reasons upon which the motion is based."

8 C.F.R. § 3.8 (1991) (amended 1996).

          To be sure, even after changes in the regulation were

made, courts sometimes treated Cerna as authoritative.       See, e.g.,

Asemota v. Gonzales, 420 F.3d 32, 33-34 (1st Cir. 2005).        But the

BIA clarified the situation in In re O-S-G, 24 I. & N. Dec. 56 (BIA

2006).   There, the BIA made clear that the "additional legal

arguments" referenced in Cerna cannot relate to grounds for relief

not previously asserted.    Id. at 58.       The BIA stated flatly that

motions to reconsider are intended only to cure errors (factual or

legal) in the prior BIA decision.      Id.    Under this approach, "[a]

motion to reconsider is not a mechanism by which a party may file

a new brief before the [BIA] raising additional legal arguments

that are unrelated to those issues raised before the [IJ] and on

appeal" or arguments that "could have been raised earlier in the

proceedings."   Id.   This gloss is wholly consistent with the text

of the implementing regulation as it now stands.          See 8 C.F.R.

§ 1003.2(b)(1).


                                 -6-
              The revisions in the regulatory format and the BIA's

decision in O-S-G combine to refute the argument made by the

petitioner.     Both the motion for reconsideration at issue here and

the BIA's denial of it occurred in 2011.            At that point in time,

the   BIA's    denial   of   a   motion   to   reconsider   that   depends   on

arguments not previously advanced was not a departure from its

established policy.      To the contrary, such a ruling comported with

the current text of the regulation and the BIA's holding in O-S-G

that a motion to reconsider is not an appropriate vehicle for

introducing new grounds of relief into a case.

              In upholding the BIA's exercise of its discretion to deny

reconsideration based on grounds previously available but not

previously asserted, we do not write on a pristine page.                Seven

other courts of appeals have grappled with this question and have

held, as we do, that the office of a motion to reconsider in an

immigration case, under current law, is ordinarily limited to the

consideration of factual or legal errors in the disposition of

issues previously raised.         Three of these courts have reached this

result in published opinions.        See Raghunathan v. Holder, 604 F.3d

371, 378 (7th Cir. 2010); Omari v. Holder, 562 F.3d 314, 319 (5th

Cir. 2009); Membreno v. Gonzales, 425 F.3d 1227, 1230 n.5 (9th Cir.

2005) (en banc).        Four others have come to the same conclusion

albeit in unpublished opinions.           See Rodriguez-Lopez v. U.S. Att'y

Gen., 454 F. App'x 734, 736-37 (11th Cir. 2011) (per curiam); Zhao


                                      -7-
Lu Xuan v. Mukasey, 278 F. App'x 45, 46-47 (2d Cir. 2008); Ortega

v. Att'y Gen. of U.S., 159 F. App'x 357, 360 (3d Cir. 2005) (per

curiam); Xie v. Ashcroft, 119 F. App'x 516, 517 (4th Cir. 2005)

(per curiam).

          In the case at hand, the BIA's order was in line with the

framework erected in 8 C.F.R. § 1003.2(b)(1) and embraced in O-S-G.

The petitioner's belated claims that he fears persecution based on

his family membership or his religion are entirely new.       These

claims could have been brought at the inception of the removal

proceedings, but the petitioner did not advance them at or near

that time. Instead, he waited until his original claims were heard

and rejected by both the IJ and the BIA.       He then attempted to

switch horses in midstream.   Because his new claims are separate

and distinct from the claims that he unsuccessfully asserted before

the IJ and the BIA, the BIA did not abuse its discretion in

dismissing his motion to reconsider.

          We add a coda.    The BIA's policy regarding motions to

reconsider is not only lawful but also wise.   It would be imprudent

to invite an alien to put forth some claims for relief but allow

him to keep others in reserve in case his original claims proved

unavailing.   Claim-splitting ought not to be encouraged; finality

is an important consideration in the administration of justice, and

removal proceedings — like other types of judicial and quasi-

judicial proceedings — must reach an end-point.        Common sense


                                -8-
suggests that there should be reasonable limits on how far down the

road a party can go and still be permitted to change horses in

hopes of finding a swifter steed.    The BIA's present approach to

the handling of motions to reconsider creates such a reasonable

limit.

          We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.



So Ordered.




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