                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2008

Valenzuela Barrera v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4529




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4529


                          ELISEO VALENZUELA BARRERA
                                             Petitioner

                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES


                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A73-189-930)
                     Immigration Judge: Honorable Mirlande Tadal


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 6, 2008

               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                              (Opinion filed: August 6, 2008)


                                        OPINION


PER CURIAM

       Eliseo Valenzuela Barrera, a citizen of Guatemala, seeks review of a final order

issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we

will deny the petition for review.
       Petitioner entered the United States in 1993, without being admitted or paroled

after inspection by an Immigration Officer. In 2005, Petitioner was served with a Notice

to Appear, which charged that he was in the United States without authorization.

Petitioner admitted the allegations and applied for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). After an evidentiary hearing, on

July 21, 2005 the Immigration Judge (“IJ”) issued its decision and order of removal to

Guatemala, concluding that Petitioner had failed to meet his burden of proof regarding

his claims. On February 14, 2007, the BIA affirmed the IJ’s decision. On May 14, 2007,

Petitioner filed a motion to reopen the BIA’s decision based on new evidence. The BIA

denied the motion on August 17, 2007, noting, inter alia, a number of authenticity

questions about the evidence, the motion’s lack of any supporting affidavit, and the

evidence’s lack of specific relevance to Petitioner’s circumstances. On September 17,

2007, Petitioner filed a motion for reconsideration of the BIA’s decision. The BIA

denied the motion on October 23, 2007. On November 23, 2007, Petitioner filed with

this Court his petition for review.

       Although Petitioner urges otherwise, our review is limited to the BIA’s October

23, 2007 decision denying Petitioner’s motion for reconsideration. See Nocon v. I.N.S.,

789 F.2d 1028, 1032-33 (3d Cir. 1986) (final deportation orders and orders denying

motions to reconsider are independently reviewable; a timely petition for review must be

filed with respect to the specific order sought to be reviewed); Stone v. INS, 514 U.S.



                                             2
386, 405 (1995) (a motion for reconsideration does not toll the time to file a petition for

review of a final deportation order). We review the denial of a motion for

reconsideration for an abuse of discretion. Nocon, 789 F.2d at 1033. Under that standard

of review, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or

contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

       A motion for reconsideration must specify the errors of law or fact in the BIA’s

prior decision. 8 C.F.R. § 1003.2(b)(1). It is a “request that the Board re-examine its

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

or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec 336, 338 (BIA

2002) (en banc) (internal quotation and citations omitted). In this case, Petitioner filed

his motion for reconsideration to seek additional time for authenticating the evidence

submitted with his earlier-adjudicated motion to reopen. Petitioner also argued that the

BIA erred by not granting the motion as unopposed. In denying the motion for

reconsideration, the BIA cited section 1003.2(b)(1) and concluded that the motion

specified no error of fact or law in the earlier decision warranting reconsideration of the

August 17, 2007 decision, notwithstanding the government’s lack of response to the

motion to reopen. Upon review of the relevant documents in the administrative record,

we agree with the BIA’s conclusion. We add that Petitioner’s argument that the BIA

erred in denying the motion to reopen simply because it was unopposed has no merit,

given the restrictive standards governing motions to reopen, as well as the discretionary



                                              3
nature of such motions. See Sevoian, 290 F.3d at 173. In sum, we discern no abuse of

the BIA’s discretion in its October 23, 2007 order.

      For the foregoing reasons, we will deny the petition for review.




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