                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3314




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 03-3314


                                  JOCELYN JOSEPH,
                                         Petitioner

                                            v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,
                                             Respondent


                        On Petition for Review of Orders of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                BIA No. A77-013-254


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 12, 2004

        Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: July 29, 2004)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

             Jocelyn Joseph, a citizen of Haiti, seeks review of two independent

decisions of the Board of Immigration Appeals (“BIA”), the first denying his motion to
reopen and the second denying his underlying application for asylum, withholding of

removal and protection under the Convention Against Torture (“CAT”). We have

jurisdiction to hear Joseph’s petition pursuant to 8 U.S.C. § 1252. For the reasons

discussed below, we will deny the petition.

                                              I.

       Jocelyn Joseph was a police officer in Haiti, responsible in part for investigating

gang-related activities. During routine duty, Joseph was ordered to arrest certain known

gang members by a local judge. Upon learning of the order, Joseph’s supervisor,

Commissioner Jean Claude Regure, told Joseph to ignore the judge’s command and not to

arrest the gang members. Over the commissioner’s instructions, Joseph investigated the

house where he knew the criminals to be. Upon entering he found, not only the suspects,

but also two police officers whom Joseph believed to be collaborating with the gang

members. Later, when Joseph arrested another individual affiliated with the same gang,

he was told by the arrestee that the commissioner was going to have him killed.

       Joseph was transferred to another station, but claims that the retaliatory threats

continued, and that he was forced to sleep in the police station at night, because it was the

only reliable safe harbor. When the threats became intolerable, Joseph had his visa

doctored and came to the United States.

       The Immigration Judge considered Joseph’s application for asylum and concluded

that Joseph did not qualify as a refugee under the Immigration and Naturalization Act,



                                              2
because he did not establish facts that would lead a reasonable person to believe that he is

in danger because of his race, religion, nationality, membership in a particular social

group or political opinion. Recognizing that there might be instances where status as a

former police officer would be significant in establishing a fear of prosecution, the IJ

nonetheless concluded that Joseph’s fears arose from dangers encountered through

routine police service, and not as a result of his affiliations or immutable characteristics.

Joseph’s applications for asylum, withholding of removal, and protection under the CAT

were denied and an order for removal was issued.

       The BIA summarily affirmed the IJ’s order on October 31, 2002. Joseph filed a

timely motion to reopen, based on his marriage to a permanent resident of the United

States, which the BIA denied on July 8, 2003. Joseph now petitions for review of the

BIA’s orders.

                                              II.

       Joseph first contests the BIA’s denial of his motion to reopen. We review such a

denial for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170-1 (3d Cir. 2002).

Petitioners may move to reopen their proceedings upon the discovery of new facts,

supported by documentation, which might reverse the outcome of their hearings. 8

U.S.C. § 103.5 (2004). The Attorney General is granted “broad discretion” in granting or

denying such motions, and we review for abuse of discretion. INS v. Doherty, 502 U.S.

314, 322-323 (1992).



                                               3
       Joseph moved to reopen his BIA proceedings based on his application for

adjustment of status after his marriage to a permanent resident. As the BIA concluded in

disposing of his motion to reopen, and as Joseph concedes in the blue brief, he is

currently ineligible for adjustment of status, as an arriving alien in removal proceedings.

See 8 C.F.R. § 1245.1(c)(8) (2004). Joseph argues that the BIA had the authority to

reopen and thereby terminate the proceedings against him, which would then make him

eligible to adjust his status. See 8 C.F.R. § 1245.1(c)(9)(iii)(C) (2004). However, the

BIA chose not to exercise that authority, and the petitioner offers no reason why the

BIA’s failure to reopen so as to terminate the proceedings was an abuse of discretion We

conclude that the BIA did not abuse its discretion in denying Joseph’s motion to reopen.

                                              III.

       Joseph also contests the BIA’s affirmance of the IJ’s denial of asylum, withholding

of removal, and protection under the CAT. Pursuant to 8 U.S.C. § 1252(b)(1), a petition

for review must be filed no later than thirty days after the final order of removal. The

statute of limitations is not tolled by the filing of a subsequent motion to reopen. See

Stone v. INS, 514 U.S. 386, 394-395 (1995); Nocon v. INS, 789 F.2d 1028 (1986). 1 The

initial order of the BIA, is final and immediately appealable; later filings are irrelevant to




   Although both Stone and Nocon concern orders of deportation, rather than removal, no
statutory or regulatory distinction is drawn for the purposes of reopening. See 8 U.S.C. §
1252; 8 C.F.R. § 1245.1.

                                               4
the limitations period.2

       Joseph filed his petition for review on August 6, 2003, well after the thirty-day

window to appeal the BIA’s October 31, 2002 order had closed.3 Because the statute of

limitations has run, we may not revisit the merits of Joseph’s application for asylum,

withholding of removal and protections under the Convention Against Torture.

                                            IV.

       For the foregoing reasons, the petition for review will be denied.




  The Court in Stone noted that the statutory text of 8 U.S.C. § 1105a(a), since moved to
8 U.S.C. § 1252(b)(6), provides that the motion to reopen should be consolidated with the
underlying order, but not vice versa. As the Court concluded, “[T]he statute is best
understood as reflecting an intent on the part of Congress that deportation orders are to be
reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to
reopen or reconsider.”

  We note as a second procedural defect that Joseph only petitioned for review of his
motion to reopen. Under Stone, both the BIA’s order of removal and the order denying
Joseph’s motion to reopen are final orders, each of which must be petitioned to this Court.

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