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


6-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2592




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"Grigorian v. Atty Gen USA" (2008). 2008 Decisions. Paper 1069.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1069


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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________
                                  No. 07-2592
                                 ___________

                                VARDEN GRIGORIAN,
                                                              Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A24-984-066)
                          Immigration Judge: Henry S. Dogin
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 2, 2008
               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                              (Opinion filed:June 3, 2008)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Varden Grigorian is a native and citizen of Armenia. Through counsel, he seeks

review of a Board of Immigration Appeals (“BIA”) decision denying his motion for

reconsideration. For the following reasons, we will affirm.

      Grigorian was admitted to the United States as a lawful permanent resident on
October 31, 1980. While living in the United States, he has been convicted of a number

of state crimes.1 He left and re-entered the country again in 2004, applying for admission

as a lawful permanent resident; he was paroled into the country on a temporary permanent

resident card. Soon afterwards, he was issued a Notice to Appear in immigration court on

charges that he was inadmissible for committing acts constituting the essential elements

of a crime involving moral turpitude in violation of INA §§ 212(a)(2)(A)(i)(I), and for

violating a state law relating to a controlled substance in violation of §

212(a)(2)(A)(i)(II).

       Although scheduled to appear before an IJ on December 7, 2004, Grigorian did not

show up at the hearing. Consequently, he was ordered removed in absentia. In April

2005, he timely filed a counseled motion to rescind the in absentia order and reopen

proceedings, arguing that exceptional circumstances beyond his control prohibited him

from appearing at the hearing. He explained that he left the country because his son had

fallen seriously ill in Armenia and that, en route back to the United States, he himself fell

seriously ill at the Vienna Airport and could not make his connecting flight. On April 19,

2005, the IJ denied the motion, finding that because he had been placed in removal

proceedings by the Department of Homeland Security, he had no permission in the first




   1
     In 1988, Grigorian was found guilty of possession of marijuana and use of drug
paraphernalia. In 1995, he was convicted of possession of a controlled substance and
petit larceny. In 1998, he pled guilty to petit larceny. In 2001, he was again convicted of
possession of a controlled substance and petit larceny.

                                              2
instance to leave the country. Therefore, the IJ concluded, his delayed return could not be

excused. Grigorian timely filed a counseled appeal of the IJ’s decision. However, shortly

afterwards, his then-attorney, Shirley Tang, filed a letter with the BIA to withdraw the

appeal, because Grigorian had left the United States to return to his family. The BIA

accepted the filing and withdrew his appeal.

       On July 14, 2006, through new counsel, Grigorian filed a motion to reinstate his

appeal with the BIA, but that motion was denied on November 28, 2006. He did not

petition this Court for review of that decision. On December 21, 2006, he moved for

reconsideration of that denial, and the BIA denied the motion on April 30, 2007.

Grigorian now seeks review of the BIA’s denial of his motion for reconsideration.

       We have jurisdiction to review final orders of the BIA. See 8 U.S.C. § 1252.

Because Grigorian is removable as a convicted criminal under the INA, see §

1252(a)(2)(C), we review only the colorable legal or constitutional issues that he raises.

See § 1252(a)(2)(D); Cruz v. Attorney General, 452 F.3d 240, 246-47 (3d Cir. 2006). We

review the BIA’s denial of a motion for reconsideration for abuse of discretion with broad

deference to the Board’s decision. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.

2005); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003). In order to succeed on

a petition for review, the petitioner must show that the BIA’s discretionary decision was

arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

As the only ruling that Grigorian appeals is the BIA’s April 30, 2007 decision, we review



                                               3
only that decision.

       The BIA denied Grigorian’s motion to reconsider because he failed to identify any

error of law or fact suggesting that its prior decision was defective. Moreover, it

declined to exercise its discretion to consider, sua sponte, Grigorian’s motion.2 Although

Grigorian insists that the BIA’s decision was erroneous, his motion does nothing more

than reiterate the arguments underlying his motion to reinstate the appeal. To the extent

that we would have jurisdiction to review these arguments at all, they should have been

raised on a petition for review of the BIA’s November 28, 2006 denial of his motion to

reinstate his appeal, not in the present petition for review of the BIA’s denial of his

motion for reconsideration.

       Because Gregorian does not show that the BIA’s decision denying his motion for

reconsideration was arbitrary, irrational or contrary to law, see id., we will affirm the

BIA’s order.




   2
     The BIA noted that Grigorian put forth no potentially meritorious claims for
reopening the proceedings, including, for example, allegations that his attorney was
ineffective. See Lu v. Ashcroft, 259 F.3d 127, 132-34 (3d Cir. 2001).

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