                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3187




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3187


                                    LENEL JOSEPH,
                                          Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                  Respondent


                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A-77-045-848)
                   Immigration Judge: Honorable Alberto J. Riefkohl


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 14, 2007

     Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.

                               (Filed December 19, 2007)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Lenel Joseph petitions for review of an order of the Board of Immigration Appeals

(“BIA”) denying his third motion to reopen removal proceedings. For the reasons below,

we will deny Joseph’s petition for review.
       Joseph is a citizen of Haiti charged with removal under 8 U.S.C. § 1227. The

Immigration Judge initially found Joseph removable, and the BIA affirmed. Over two

years later, Joseph filed a motion to reopen, arguing that the political situation in Haiti

had become worse and his life would be in danger if he were returned. The BIA denied

petitioner’s motion because it was untimely. Ten days later, Joseph filed a second motion

to reopen, again arguing that his life would be in danger if he were returned to Haiti. The

BIA denied that motion because it “exceed[ed] the numerical limitations for motions to

reopen.” Almost two years later, petitioner filed a third motion, arguing that, because his

brother had received asylum in December 2004, his immigration proceedings should be

reopened. The BIA denied this motion on the basis that the supporting documents did not

demonstrate that Joseph was similarly situated to his brother or that he possessed a well-

founded fear of persecution on account of his brother’s activities or asylum status. This

petition for review followed.

       Joseph claims the BIA misapplied Section 1003.2(c)(1), which permits an alien to

file a motion to reopen based on new evidence that is “material and was not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1). We will not disturb the BIA’s denial of a motion to reopen unless it is

“‘arbitrary, irrational, or contrary to law.’” Borges v. Gonzales, 402 F.3d 398, 404 (3d

Cir. 2005) (citations omitted).

       Joseph argues that the fact that his brother was granted asylum in December 2004

satisfies Section 1003.2(c)(1). This fact alone, however, is insufficient. Joseph failed to

                                              2
demonstrate that he is similarly situated to his brother. In fact, testimony on the record

distinguishes the two. Joseph also failed to prove that he possessed a well-founded fear

of persecution on account of his brother’s activities or asylum status. The BIA’s ultimate

denial of Joseph’s motion and its factual findings are supported by reasonable and

substantial record evidence. Thus, Joseph has not shown that the BIA’s decision to deny

his motion to reopen is arbitrary, irrational, or contrary to law.

       For the foregoing reasons, we will deny the petition for review.




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