                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2833




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                                                                NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                      No. 07-2833


                                 SAFWAT ELKILANI,
                                             Petitioner

                                           v.

                             ATTORNEY GENERAL USA,
                                           Respondent


                         On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                  BIA No. A95-831-811
                   (U.S. Immigration Judge: Honorable Annie S. Garcy)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 4, 2007
     Before: SCIRICA, Chief Judge, HARDIMAN and ALDISERT, Circuit Judges

                               (Filed: December 6, 2007 )


                               OPINION OF THE COURT


PER CURIAM.

       Safwat Elkilani petitions for review of a Board of Immigration Appeals (“BIA”)

decision denying his motion to reopen and reconsider. For the reasons that follow, we

will deny his petition.
       The Government charged Elkilani, a native and citizen of Egypt, as removable for

overstaying his visa. Elkilani conceded the charge and applied for withholding of

removal and protection under the Convention Against Torture (“CAT”).1 He claimed that

he had been persecuted when Egyptian officials, looking for an anti-government activist

whom he resembled, detained him for two days when he was traveling to Libya for a

relative’s wedding. Also, Elkilani described being delayed twice at customs for

questioning, once for two hours and once for eight hours, during his relatively frequent

travel between Egypt and other countries.

       The Immigration Judge (“IJ”) denied Elkilani’s application, and Elkilani appealed

to the BIA. On January 4, 2007, the BIA dismissed his appeal. Soon thereafter, Elkilani

filed a motion to reopen and reconsider. He argued that the IJ and BIA erred in

concluding that he would not be persecuted because those who had detained him believed

he held anti-government political opinions. He also claimed that an unfortunate change

for the worst in Egypt’s political atmosphere made it dangerous for him to return to his

native country. In support of the latter contention, Elkilani attached two Amnesty

International articles, one expressing general concerns about human rights issues in Egypt

and one questioning the treatment of Sudanese protesters. The BIA denied the motion to

reopen and reconsider. Elkilani filed a petition for review.




   1
   Any asylum claim was untimely.

                                             2
       We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a

motion to reopen or a motion for reconsideration under a highly deferential abuse of

discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); Nocon v.

INS, 789 F.2d 1028, 1033 (3d Cir. 1986). The BIA’s discretionary decision is not

disturbed unless it is found to be arbitrary, irrational or contrary to law. See Guo, 386

F.3d at 562.

         Elkilani contends that the BIA erred in denying his motion to reopen and

reconsider because it previously had wrongly dismissed his argument that he was

persecuted when he was detained by Egyptian authorities. He claims that the IJ and the

BIA should have awarded him relief on his theory of persecution for imputed political

opinion. Elkilani also argues that the BIA should have reopened his case because he

provided evidence of a worsening political situation in Egypt. He asks that we grant him

withholding of removal or remand this matter to the BIA for a finding that he was

persecuted.

       The Government opposes Elkilani’s petition. Specifically, the Government argues

that we lack jurisdiction to consider the merits of Elkilani’s withholding and CAT claims

because Elkilani did not appeal the BIA’s decision of January 4, 2007. The Government

also contends that we cannot consider Elkilani’s claims relating to his motion to reopen

and reconsider because he did not specifically challenge them in his informal brief. In the

alternative, the Government argues that the BIA did not abuse its discretion in denying

the motion to reopen and reconsider.

                                              3
        We agree with the Government that we cannot now review the BIA’s decision of

January 4, 2007. That decision was not appealed within the 30 days allotted. See 8

U.S.C. § 1252(b)(1). Because Elkilani did not comply with the statutory filing deadline,

we do not have jurisdiction to review the final order of removal. See Nocon, 789 F.2d at

1033.

        We can and will review the BIA’s order denying the motion to reopen and

reconsider. Although Elkilani’s brief is spare, he presented his arguments with enough

specificity to alert us to them. Cf. Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005).

Nonetheless, we will deny Elkilani’s petition because the BIA did not abuse its discretion

in denying his motion to reopen and reconsider.

        In denying the motion to reopen, the BIA concluded that the Amnesty

International articles, although post-dating the January 4, 2007 decision, concerned that

organization’s long-standing concerns about human rights conditions in Egypt. The BIA

stated that they were not particularly relevant to Elkilani’s case, and, to the extent they

were relevant, they were cumulative of evidence Elkilani had presented. The BIA did not

abuse its discretion in making these conclusions, which are supported by the evidence in

the record.

        In denying the motion for reconsideration, the BIA determined that Elkilani was

not raising true grounds for reconsideration but just the same arguments that he had raised

in his appeal from the IJ’s order, including the claim that he had suffered past

persecution. The BIA noted that it had already found the arguments unpersuasive, and no

                                              4
error of fact or law marred its decision. The BIA did not act arbitrarily or irrationally in

denying the motion on these grounds, especially because Elkilani repeated his arguments

for relief without identifying a specific error of fact or law.

       In conclusion, because the BIA did not abuse its discretion in denying Elkilani’s

motion to reopen and reconsider, we will deny Elkilani’s petition for review.




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