                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4205




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                                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 05-4205
                             ________________

                      BRUCE JOSEPH FERNANDES,

                                      Petitioner

                                      v.

                      ATTORNEY GENERAL OF THE
                           UNITED STATES,

                                   Respondent
                  ____________________________________

                     On Petition for Review of an Order
                     of the Board of Immigration Appeals
                           Agency No. A72 022 843
                              on August 19, 2005
                      Immigration Judge: Annie S. Garcy
                _______________________________________


                  Submitted Under Third Circuit LAR 34.1(a)
                                May 2, 2006

B e f o re: SCIRICA, CHIEF JUDGE, BARRY AND COWEN, CIRCUIT JUDGES


                           (Filed: May 2, 2006)
                          ____________________

                                OPINION
                          _____________________
PER CURIAM

       Bruce Joseph Fernandes, a native and citizen of India, petitions for review of an

order of the Board of Immigration Appeals (BIA), denying his second motion to reopen.

We will deny the petition.

       In removal proceedings, Fernandes filed an asylum claim. The Immigration Judge

(IJ) denied relief but granted voluntary departure on July 27, 1998. The IJ denied a

motion to reopen in which Fernandes claimed he was eligible to adjust status based on a

labor certification on July 3, 2002, finding that Fernandes was ineligible to adjust status

because he failed to depart during the period granted. The Board of Immigration Appeals

(BIA) dismissed his appeal on June 26, 2003, because he failed to file a brief after stating

that he would do so. Fernandes petitioned for review of that decision, and we denied the

petition.1 See Fernandes v. Attorney General, No. 03-3042 (3d Cir., July 22, 2004).

       On June 10, 2005, the BIA denied as untimely a motion to reopen that Fernandes

had filed on March 25, 2005. Fernandes had argued that his untimely motion was

allowed due to changed country conditions, but the BIA held that he had “not provided

any material evidence to support this claim.” On August 19, 2005, the BIA denied a

second motion to reopen as it exceeded the numerical limitations. Fernandes filed this

timely petition for review of that decision. We denied his motion for a stay of removal on

December 6, 2005.

   1
    We dismissed the petition for lack of jurisdiction to the extent it attempted to
challenge the earlier decision denying him asylum.

                                              2
       This court’s review extends only to the BIA’s order denying Fernandes’ second

motion to reopen. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d

1028, 1033-34 (3d Cir. 1986). The decision to deny a motion to reopen is within the

Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.

2001). Under the regulations, the Board “has discretion to deny a motion to reopen even

if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a).

The standard of review of an order denying a motion to reopen is very deferential. INS v.

Doherty, 502 U.S. 314, 323 (1992) (stressing that motions to reopen immigration

proceedings are disfavored and confining review to abuse of discretion).

       Fernandes has not shown that the BIA abused its discretion in failing to reopen

proceedings. Fernandes’ brief states that he has a well-founded fear of persecution based

on his religion and political activities. He also argues that the BIA should have granted

his motion to reopen because his employer has filed a labor petition on his behalf which is

pending. However, the motion to reopen did not mention any pending labor petition, and

Fernandes makes no other argument that addresses how the BIA erred in denying his

second motion to reopen. We will therefore deny the petition.




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