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


6-5-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3586




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DPS-213                                                  NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 03-3586
                                ________________

                              AKHSARBEK PINOV;
                                RIMA PINOVA,
                                             Petitioners

                                         v.

               ATTORNEY GENERAL OF THE UNITED STATES
                  ____________________________________

                    On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                    (Agency Nos. A78 498 169; A78 498 168)
                  Immigration Judge: Honorable Eugene Pugliese
                  _______________________________________


Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 4, 2006

    BEFORE: FUENTES, VAN ANTWERPEN and *ROTH, CIRCUIT JUDGES

                              (Filed   June 5, 2006 )

                           _______________________

                                   OPINION
                           _______________________




*Judge Roth assumed senior status on May 31, 2006.
PER CURIAM

       Akhsarbek Pinov and his wife Rima Pinova, natives and citizens of Russia,

petition for review of a final order of the Board of Immigration Appeals. On the

government’s motion, we will summarily deny the petition for review.

       The petitioners were found removable by an Immigration Judge (“IJ”) for having

overstayed their admission period. See INA § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)].

They applied for asylum, withholding of removal and protection under the United Nations

Convention Against Torture, but the IJ denied relief. The petitioners, through counsel,

sought review by the Board of Immigration Appeals (“BIA”) and, after one extension,

were ordered to submit a brief by September 6, 2002. No brief was received, however,

and the BIA dismissed the appeal on March 5, 2003. See 8 C.F.R. § 1003.1(d)(2)(i)(E).

       Represented by new counsel, the petitioners filed a motion for reconsideration of

the BIA’s summary dismissal. The BIA denied the motion on June 9, 2003. Undeterred,

the petitioners filed another motion for reconsideration, which the BIA denied on July 29,

2003, finding that it was numerically barred. See 8 C.F.R. § 1003.2(b)(2). The

petitioners timely filed a petition for review. In April 2006, after the petitioners filed

their opening brief, the government moved to summarily deny the petition for review.

See I.O.P. 10.6.

       We have jurisdiction to review the Board’s denial of the petitioners’ motion for



                                               2
reconsideration. See, e.g., Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986). The

scope of our review is quite limited, however. See INS v. Doherty, 502 U.S. 314, 323

(1992). We review the denial of a motion for reconsideration for abuse of discretion

only. Nocon, 789 F.2d at 1033; see also Doherty, 502 U.S. at 323 (noting the “broad”

deference due the BIA’s decision).

         Significantly, in this proceeding, we can review only the BIA’s July 29, 2003

denial of reconsideration; our review does not extend to (i) the IJ’s original order denying

relief, (ii) the BIA’s March 5, 2003, summary dismissal of the petitioners’ appeal, or (iii)

the BIA’s June 9, 2003, denial of reconsideration. See Stone v. INS, 514 U.S. 386, 405

(1995) (holding that review of an original removal decision and a subsequent removal

order are distinct); see also McAllister v. Attorney General, -- F.3d --, 2006 WL 903203,

at *3 (3d Cir. Apr. 10, 2006) (recognizing that a petition for review must be filed within

30 days of a final order of removal). Consequently, we may not examine the sole

argument presented in the petitioners’ counseled brief, namely, that the IJ erred in

“[r]efusing to recognize that [they] established both past persecution and well-founded

fear of future persecution . . . on account of [their] membership in a particular social

group.” Because the petitioners’ brief to this Court makes no mention of the BIA’s

decision that their second motion for reconsideration was numerically barred, they have

waived appellate review of that issue. See, e.g., In re Surrick, 338 F.3d 224, 237 (3d Cir.

2003).



                                              3
      For the foregoing reasons, we conclude that the petitioners’ appeal presents us

with no “substantial question.” I.O.P. 10.6. Accordingly, we will grant the government’s

motion and summarily deny the petition for review.




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