                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

            United States Court of Appeals
                         For the First Circuit

No. 04-2368

                            FARID BELGUENDOUZ
                               Petitioner,

                                       v.

                          ALBERTO GONZÁLES,*
                   UNITED STATES ATTORNEY GENERAL,
                             Respondent.


               ON PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                                 Before
                       Torruella, Circuit Judge,
                         Dyk,** Circuit Judge,
                      and Howard, Circuit Judge.


     Christopher W. Drinan, with whom Law Office of John K. Dvorak,
P.C., was on brief, for petitioner.
     William C. Peachey, Trial Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General,
Civil Division, and Michael P. Lindemann, Assistant Director, were
on brief, for respondent.



                             December 2, 2005




*
   Alberto Gonzáles was sworn in as United States Attorney General
on February 3, 2005.     We have therefore substituted Attorney
General Gonzáles for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25(1); Fed. R. App. P. 43(c)(2).
**
     Of the Federal Circuit, sitting by designation.
          TORRUELLA, Circuit Judge.   Petitioner Farid Belguendouz

("petitioner") appeals the denial of a motion to reconsider by the

Board of Immigration Appeals ("BIA").       He argues that the BIA's

decision was erroneous and an abuse of discretion because his

submission of an Immigrant and Naturalization Service ("INS")1

filing receipt for an I-140 Immigrant Petition for an Alien Worker

served as prima facie evidence that his Application for Alien Labor

Certification had been approved.   Because the BIA's order did not

constitute an abuse of discretion, we affirm the BIA's decision.

                          I.   Background

          Petitioner is a native and citizen of Algeria.          He

entered the United States on September 29, 1999, as a non-immigrant

visitor and was authorized to remain in the country until March 28,

2000.   Petitioner overstayed, and on January 16, 2003, the INS

placed petitioner in removal proceedings.       The INS alleged that

petitioner was removable as an alien who had overstayed a non-

immigrant visa pursuant to 8 U.S.C. § 1227(a)(1)(B).

          On May 14, 2003, petitioner failed to appear at his

hearing before the Boston Immigration Court and was ordered removed

in absentia.   Petitioner filed a motion to reopen2 on June 19,


1
    In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement.
For simplicity, we refer to the agency as the INS.
2
   The Code of Federal Regulations requires that an in absentia
order entered in removal proceedings "may be rescinded only upon a

                                -2-
2003, seeking relief in the form of being allowed to apply for

adjustment of status (based on his pending I-140 visa petition) or,

in the alternative, voluntary departure.     Petitioner first argued

that the in absentia removal order was unjustified because notice

of the hearing was not sent to "the most recent address provided by

the alien" as required by 8 C.F.R. § 1003.26 ("Written notice to

the alien shall be considered sufficient for purposes of this

section if it was provided at the most recent address provided by

the   alien.").3   In   the   alternative,   petitioner   argued   that

reopening his case was warranted because of the existence of

exceptional circumstances. See 8 C.F.R. § 1003.23 (b)(4)(ii). The

Immigration Judge ("IJ") denied petitioner's motion to reopen on

July 9, 2003, finding that petitioner had received adequate notice

of his hearing date and that petitioner's misunderstanding of the



motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was
because of exceptional circumstances . . . ." 8 C.F.R. § 1003.23
(b)(4)(ii) (emphasis added). Further, "no appeal shall lie from an
order of removal entered in absentia." 8 C.F.R. § 1240.15. These
two provisions explain why petitioner did not appeal the removal
order itself.
3
   The Notice to Appear ("NTA"), which was personally served upon
petitioner, notified him that any address change must be reported
to the Immigration Court by submission of a Form EOIR-33.
Petitioner apparently misunderstood this requirement and argued
that his submission of an AR-11SR change of address form to the INS
was sufficient to put the Immigration Court on notice of his new
address.   The IJ rejected this argument, stating that "only a
notice of address change provided to the Court pursuant to the
warnings contained in the NTA is sufficient to inform the Court of
the need to send correspondence to a new address."

                                 -3-
address requirements did not rise to the level of exceptional

circumstances.    Petitioner timely appealed to the BIA.

           On June 17, 2004, the BIA adopted and affirmed the

decision of the IJ and dismissed petitioner's appeal. Referring to

materials petitioner had submitted to the IJ,4 the BIA stated that

"even though the respondent's attorney asserts that the respondent

has an approved labor certification, there is no evidence of this,

nor is there evidence of an approved visa petition."5          Given this

lack of evidence, the BIA concluded that petitioner failed to show

his eligibility for relief from removal since an approved visa

petition is required in order for an alien to apply for adjustment

of status. Petitioner timely filed a motion to reconsider with the

BIA on July 6, 2004, arguing that the BIA erred when it concluded

that there was no evidence of an approved labor certification in

denying his motion to reopen. To support his assertion, petitioner

argued that the receipt he received from the INS when he filed an

I-140 Immigrant Petition for an Alien Worker was prima facie

evidence   that   he   was   the   beneficiary   of   an   approved   labor



4
   Most significantly, these materials included a filing receipt
for Labor Certification and a filing receipt for an I-140 Immigrant
Petition for an Alien Worker.
5
   Petitioner had filed a petition for a visa as a skilled worker
as outlined in 8 U.S.C. § 1153(b)(3)(A)(I).       In order to be
approved for this type of visa petition, an alien must first be
approved for alien labor certification.     Approval of this visa
petition would have rendered petitioner eligible to apply for
adjustment of status as a permanent resident. See 8 U.S.C. § 1255.

                                    -4-
certification.      According   to    petitioner,   an   approved   labor

certification is required in order to file an I-140 visa petition,

and thus his filing receipt for this petition proves his approved

labor certification status.

          On September 9, 2004, the BIA denied petitioner's motion

to reconsider stating that petitioner had "failed to show any error

of fact or law in our previous decision of June 17, 2004, based

upon the record as it existed at that time."        The BIA acknowledged

petitioner's newly submitted approved I-140 Immigrant Petition for

an Alien Worker,6 but refused to entertain it as the motion was for

reconsideration.7    The BIA also indicated in a footnote that

petitioner had previously filed a filing receipt for this document

but not an approval notice.          Additionally, the BIA found that

petitioner had "not demonstrated any clear error in the Immigration




6
  The approval notice for this petition is date February 24, 2004.
The record does not contain an approval notice for petitioner's
labor certification, but petitioner's brief designates the date of
approval as "[o]n or about August 20, 2002." Petitioner provides
no explanation why he did not simply submit the labor certification
approval notice as evidence in support of his motion to reopen.
7
   Motions to reconsider deal with errors of fact or law whereas
motions to reopen deal with new evidence.         Compare 8 C.F.R.
§ 1003.2(b)(1) ("A motion to reconsider shall state the reasons for
the motion by specifying the errors of fact or law in the prior
Board decision and shall be supported by pertinent authority.")
with 8 C.F.R. § 1003.2(c)(1) ("A motion to reopen proceedings shall
state the new facts that will be proven at a hearing to be held if
the motion is granted and shall be supported by affidavits or other
evidentiary material.").

                                     -5-
Judge's   factual    findings     concerning      [petitioner's]    failure   to

provide a current residential address."

            In this appeal, petitioner contends that the BIA abused

its discretion when, in denying his motion for reconsideration, it

failed to treat his I-140 filing receipt as prima facie evidence

that he was a recipient of an approved labor certification.

                                 II.    Analysis

            Denials of motions to reconsider are reviewed for abuse

of discretion.     Ven v. Ashcroft, 386 F.3d 357, 360 (1st Cir. 2004).

Of course, any legal error committed by the BIA constitutes abuse

of discretion by definition.           Top Entertainment, Inc. v. Torrejón,

351 F.3d 531, 533 (1st Cir. 2003).            "The decision to grant or deny

a motion to . . . reconsider is within the discretion of the

[BIA]," 8 C.F.R. § 1003.2 (a), and the BIA's decision "must be

upheld    unless    it   was    made    without    a   rational    explanation,

inexplicably departed from established policies, or rested on an

impermissible basis."          Ven, 386 F.3d at 360 (internal quotation

marks and citation omitted).

            The sole issue before this court is whether the BIA

abused its discretion in denying petitioner's motion to reconsider

its denial of petitioner's motion to reopen.8                 To the extent


8
  Petitioner devotes his brief to establishing abuse of discretion
based on the BIA's failure to consider the I-140 filing receipt as
prima facie evidence of approved labor certification. We therefore
consider waived any argument that the BIA erred in its additional
conclusion in its September 9 order that petitioner did not

                                        -6-
petitioner is arguing the BIA abused its discretion by failing to

consider his filing receipt argument at all, we believe that the

footnote in its September 9 order sufficiently indicates that the

BIA considered, and rejected, petitioner's argument that his I-140

filing receipt is sufficient proof of labor certification approval.

See Lasprilla v. Ashcroft, 365 F.3d 98, 100 (1st Cir. 2004) ("We

have found nothing in the regulations that requires the BIA to

explain its reasons when deciding a motion to reconsider.").

            Even if petitioner's argument were characterized as one

that the BIA erred as a matter of law by refusing to construe an I-

140 filing receipt as prima facie evidence of an approved labor

certification, that argument too fails.       Petitioner correctly

points out that labor certification is required for an alien to

ultimately be eligible for classification as a skilled worker. See

8 C.F.R. § 204.5(l)(3)(I).   However, we think it imprudent to rely

on the filing receipt for an I-140 visa petition as conclusive

evidence that something which is required for the ultimate grant of

that petition exists, and petitioner has not met his burden of

proof in convincing us otherwise.      One obvious reason for our

position is the possibility that a filed petition could later be

rejected for being improperly filed due to lack of a required

document.    At most, the I-140 filing receipt could have been a



demonstrate any clear error in the IJ's factual findings concerning
petitioner's failure to provide a current residential address.

                                 -7-
basis upon which the BIA inferred the existence of an approved

labor certification if it chose to exercise its broad discretion in

that manner.      We see no reason to require this sort of inference

when petitioner could have simply submitted evidence of the labor

certification approval notice, which he claims issued "on or about

August 20, 2002."       Petitioner has not adequately explained how the

I-140 filing receipt functions as prima facie evidence of a valid

labor certification and we are therefore convinced that the BIA did

not   abuse    its   discretion       by    denying   petitioner's   motion   to

reconsider.

              Because   the   BIA's    denial    of   petitioner's   motion   to

reconsider was not made without a rational explanation, did not

inexplicably depart from established policies, or rest on an

impermissible basis, the decision of the BIA is affirmed.

              Affirmed.




                                           -8-
