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


6-3-2004

De Los Santos Melgar v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2565




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 03-2565
                                    ____________

                          JOEL DE LOS SANTOS MELGAR
                     a/k/a JOWELL DE LOS SANTOS MELGAR

                                          v.

                           JOHN ASHCROFT,
                ATTORNEY GENERAL OF THE UNITED STATES,

                                                    Respondent

                               Joel De Los Santos Melgar,

                                             Petitioner
                                    ____________

                     On Petition for Review from an Order of the
                           Board of Immigration Appeals
                              (Board No. A73-186-955)
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 28, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN,* Circuit Judges.

                                 (Filed: June 3, 2004)




      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Joel Del Los Santos Melgar (“Melgar”), a citizen of the Philippines, petitions for

our review of the March 23, 2003 order of the Board of Immigration Appeals (“BIA”)

denying his motion to reopen his case with a request for stay of deportation. For the

reasons that follow, we will deny the petition for review.

       We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v.

Abudu, 485 U.S. 94, 105 (1988). We reverse only if the decision is “arbitrary, irrational,

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

omitted). Motions to reopen in deportation proceedings shall not be granted unless it

appears to the BIA that evidence sought to be offered is material and was not available

and could not have been discovered or presented at the former hearing. INS v. Doherty,

502 U.S. 314, 323 (1992); 8 C.F.R. § 3.2(c).

       Because we write only for the parties who are familiar with the facts and issues

presented for review, we only recite those necessary to the discussion. M elgar filed his

motion to reopen along with accompanying affidavits on October 4, 2002, asserting that

he was eligible for an adjustment of status to permanent resident based upon his second




                                               2
marriage to a naturalized citizen of the United States.1 But the BIA denied his motion to

reopen because in the absence of exceptional circumstances, he is ineligible for the relief

of adjustment of status for his failure to comply with the BIA’s prior order of August 30,

2001, granting him voluntary departure rather than deportation. 8 U.S.C. § 1252b(e)(5)

(1995) (providing that an alien who fails to voluntarily depart is ineligible for an

adjustment of status).2

       We conclude that the BIA did not abuse its discretion in denying Melgar’s motion

to reopen. Melgar was provided the opportunity to voluntarily depart and chose not to do

so. He therefore is statutorily barred from applying for certain forms of discretionary

relief absent exceptional circumstances (such as his serious illness or death of an

immediate relative) beyond his control. 8 U.S.C. § 1252b(f) (1995). Neither the motion

to reopen nor its supporting affidavits (which the BIA considered) meet this high

threshold for discretionary relief. Despite the fact that Melgar will leave behind his two

minor daughters, ages 6 and 4, who are United States citizens, he simply did not meet the

requirements for discretionary relief.

       1
         The BIA noted, and we agree, that Melgar’s motion to reopen was untimely in
that it was filed beyond 90 days after the final decision by the Board. See 8 C.F.R.
§3.2(c)(2). The motion to reopen would have been due on or before November 28, 2001,
and was not filed until January 10, 2003.
       2
        As proceedings were commenced prior to April 1, 1997, our jurisdiction is
premised on former section 106 (a) of the Immigration and Nationality Act, 8 U.S.C. §
1005a(a) (1995), as modified by the transitional rules for judicial review contained in
section 309(c)(4) of the Illegal Immigration Reform and Immigration Responsibility Act
of 1996. See Liang v. INS, 206 F.3d 308, 310 (3d Cir. 2000).

                                              3
      We have reviewed all of the contentions raised by the parties and conclude that no

further discussion is required. The petition for review will be DENIED.
