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


11-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1930




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                                                NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                  No: 06-1930
                _______________

       UGUUMURSAIKHAN AYURZANA;
            RAISSA BEMBEEVA;
       ZOLBAYAR UGUUMURSAIKHAN;
         AISA UGUUMURSAIKHAN,

                         Petitioners

                          v.

ATTORNEY GENERAL OF THE UNITED STATES,

                       Respondent
                _______________

       Petition for Review of an Order of the
        United States Department of Justice
           Board of Immigration Appeals
       (BIA No. A72-020-095, A70-868-627,
          A70-868-628 and A79-303-047)
        Immigration Judge Eugene Pugliese
                 _______________

     Submitted Under Third Circuit LAR 34.1(a)
                September 27, 2007

Before: AMBRO, JORDAN and ROTH, Circuit Judges.

             (Filed: November 5, 2007)
                 _______________

            OPINION OF THE COURT
                _______________
JORDAN, Circuit Judge.

       Uguumursaikhan Ayurzana, a native and citizen of Mongolia, petitions for review

of the order of the Board of Immigration Appeals (BIA) denying his Motion to

Reconsider the BIA’s affirmance of the decision denying him asylum, withholding of

removal, and relief under the Convention Against Torture. For the reasons that follow,

we will deny the petition for review.

                                            I.

       Ayurzana was admitted to the United States on or about August 25, 1997 with

authorization to stay until February 24, 1998. Also entering with him were his wife,

Raissa Bembeeva, a native and citizen of Russia, and his two children, Zolbayar, a native

and citizen of Russia, and Aisa, a native and citizen of Mongolia.1 All of the family

members overstayed their visas, and Ayurzana filed for asylum and withholding of

removal on February 21, 2002, four-and-a-half years after their entry into the United

States, alleging persecution on the basis of his race and nationality. Ayurzana’s wife and

children were included in his asylum application.

       Ayurzana asserted at his hearing before the Immigration Judge that he had failed to

file his asylum application within the one-year filing deadline because a man named

Eduardo Cortez, who Ayurzana claimed represented himself as an attorney, deceived and




  1
   Ayurzana’s youngest child, Aza-Samantha, was born in the United States, and thus is
a United States citizen not subject to removal.

                                            2
defrauded the Ayurzanas into believing that he would file an asylum application for them.

After the hearing, the Immigration Judge denied Ayurzana’s asylum claim, finding that it

was untimely and that Ayurzana had failed to demonstrate extraordinary circumstances

for its late filing. The Immigration Judge found that there was no evidence that Cortez

even existed, or that he had any kind of agreement with Ayurzana stating that he would

file an asylum application for him or any of his family members. Noting credibility and

other problems with the testimony of Ayurzana and Bembeeva, the Immigration Judge

also found that Ayurzana had failed to meet the burden of proof for withholding of

removal or relief under the Convention Against Torture, and thus denied those claims as

well. The BIA affirmed the Immigration Judge’s decision on November 4, 2005, noting

that Ayurzana’s asylum application was untimely and that he had not demonstrated

entitlement to withholding of removal or relief under the Convention Against Torture.

      Ayurzana did not appeal that decision of the BIA. Instead, he filed a Motion to

Reconsider, asserting that he was entitled to asylum and withholding of removal, and

again claimed that his asylum application was untimely because of Cortez’s deception.

With that motion, he also submitted additional evidence, including Cortez’s business

card, cancelled checks made out to Cortez’s company, letters from Cortez noting that he

was attempting to obtain a work permit for Ayurzana, and letters from family members in

Mongolia. The BIA denied the Motion to Reconsider, noting that Ayurzana had “not

provided additional legal arguments, references to a change of law, or arguments or


                                            3
aspects of the case that were overlooked.” The BIA also noted that, to the extent that

Ayurzana was making an ineffective assistance of counsel claim, he had failed to comply

with the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The BIA

further found that the additional evidence submitted by Ayurzana, considered in the

nature of a motion to reopen, did not provide sufficient prima facie evidence of

persecution on account of a protected ground, and thus denied that motion as well.

                                              II.

       Ayurzana petitions for review of the November 4, 2005 and the February 17, 2006

decisions of the BIA. Ayurzana, however, did not file his notice of appeal until March

17, 2006, within 30 days of the February 17, 2006 order of the BIA denying his Motion to

Reconsider,2 8 U.S.C. § 1252(b)(1), but long after the November 4, 2005 final order of

removal from the BIA. Because the notice of appeal is only timely as to the order of the

BIA denying Ayurzana’s Motion to Reconsider, we have jurisdiction to review only that

order of the BIA. See Stone v. INS, 514 U.S. 386, 405-06 (1995) (“[A] deportation order

is final, and reviewable, when issued. Its finality is not affected by the subsequent filing

of a motion to reconsider.”).3 Thus, to the extent that Ayurzana requests review of the




  2
    The BIA considered Ayurzana’s motion as both a motion to reconsider and a motion
to reopen. For ease of reference, we will refer to it here as the Motion to Reconsider.
  3
   In Stone, the court discusses a 90-day time period for seeking review, but that was
shortened by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
which specifies a 30-day period. 8 U.S.C. § 1252(b)(1).

                                              4
November 4, 2005 final order of the BIA, the petition for review will be dismissed, and

we will review only the BIA’s denial of Ayurzana’s Motion to Reconsider.

         We review the denial of a motion to reconsider for abuse of discretion, the same

standard used to review the denial of a motion to reopen. Borges v. Gonzales, 402 F.3d

398, 404 (3d Cir. 2005). The BIA’s decision “will not be disturbed unless [it] is found to

be arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004).

         A motion to reconsider should point out the errors of fact or law committed by the

BIA. See 8 C.F.R. § 1003.2(b). Under 8 C.F.R § 1003.2(c)(1), the BIA has discretion to

reopen proceedings if the movant states new facts to be proved at a hearing that are

supported by affidavits or other evidentiary material. That new evidence must be material

and have been unavailable at the former hearing. Id.

         The BIA did not abuse its discretion in denying Ayurzana’s Motion to Reconsider.

Ayurzana did not present new legal arguments, or point out errors of fact or law. Instead,

he largely presented arguments identical to those he presented in his brief to the BIA

appealing the decision of the Immigration Judge. Furthermore, additional evidence that

Ayurzana attached to his Motion to Reconsider was not new evidence, since it was

available at the time of the October 30, 2003 hearing before the Immigration Judge. 8

C.F.R. § 1003.2(c)(1) (to succeed on a motion to reopen, the “evidence sought to be

offered [must be] material and [must not have been] available and could not have been


                                              5
discovered or presented at the former hearing”). Each of the checks and letters from

Cortez’s company have dates from either 1999 or 2000, and thus were available at the

2003 hearing. The letters from Ayurzana’s family members also fail to present new

evidence, since three of the four letters describe events that occurred, at least in part, in

2002 and 2003, and the fourth letter contains no dates at all. Thus, because Ayurzana

could have presented this evidence at his hearing before the Immigration Judge, it is not

new evidence that would justify the reopening of his case or the reconsideration of the

BIA’s decision.

       Ayurzana argues that the BIA abused its discretion in denying his Motion for

Reconsideration because it committed an error of law when it stated that any ineffective

assistance of counsel claim that Ayurzana was attempting to make in his Motion to

Reconsider would fail because he had not met the requirements of Matter of Lozada, 19

I&N Dec. 637.4 Ayurzana asserts that because Cortez was not a lawyer, he was not

required to meet Lozada, and that the BIA erred when it required him to do so.

Ayurzana’s claim, however, misinterprets the BIA’s decision. The BIA did say that

Ayurzana had failed to meet the requirements of Lozada, but that was after it had already

stated that there was no proper basis for reconsidering its earlier ruling. Having stated



  4
    Lozada requires that, to make an ineffective assistance of counsel claim, a petitioner
must submit an affidavit setting forth the facts, including the agreement with counsel
about the scope of representation, inform counsel about the allegations (so that counsel
has an opportunity to respond), and state whether a complaint was filed with state bar
authorities. Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001).

                                               6
that Ayurzana failed to meet the legal standard for reconsidering the case, the BIA merely

noted that any claim for ineffective assistance of counsel would have failed because of

Ayurzana’s failure to satisfy the requirements of Lozada. Because the BIA did not rely

on Ayurzana’s failure to meet Lozada in denying his motion for reconsideration, he

cannot latch onto that statement to assert that the BIA abused its discretion in denying his

motion. The painful fact is that Ayurzana failed to present any new legal arguments, or to

point out errors of fact or law, or to present new evidence that had not been available.

Hence, the BIA’s decision was not an abuse of discretion, and his petition for review will

be denied.

       The remainder of the arguments that Ayurzana makes on appeal go to the BIA’s

affirmance of the Immigration Judge’s decision denying him asylum, withholding of

removal, and relief under the Convention Against Torture. As was stated above, because

Ayurzana did not file a petition for review within 30 days of the BIA’s decision, we do

not have jurisdiction to review those claims. See Stone, 514 U.S. at 405-06 . To the

extent he seeks review of those claims, the petition for review will be dismissed.

                                            III.

       For the foregoing reasons, the petition for review will be dismissed in part and

denied in part.




                                             7
