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


1-6-2006

Abdel-Whab v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2406




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                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                        NO. 05-2406
                                     ________________

                           USAMA SADIK ABDEL-WHAB,
                                          Petitioner
                                       v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                           Respondent
                    ____________________________________

                         On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A79 120 260
                                  on March 28, 2005
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2005

                Before: ROTH, RENDELL and AMBRO, Circuit Judges

                                 (Filed January 6, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Usama Sadik Abdel-Whab petitions for review of a March 28, 2005 decision of

the Board of Immigration Appeals, denying his second motion to reopen as numerically

barred. We will deny the petition.
       We review the Board’s denial of a motion to reopen for abuse of discretion with

“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003).1 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). As

Abdel-Whab’s motion was numerically barred by the regulations, the Board did not abuse

its discretion in denying the motion.

       Abdel-Whab argues that the Board should have construed his motion as one to

reconsider, as he was challenging the Board’s decision to deny his previous motion to

reopen.2 First, because he attached documentation to try to show that the Board had

incorrectly denied his first motion to reopen as untimely, we cannot say that the Board

abused its discretion in characterizing the motion as one to reopen. See 8 C.F.R.

§ 1003.2(c)(1) (noting that a motion to reopen must be accompanied by any supporting

documentation).

       However, even if the Board had considered the motion as one to reconsider, we

note that it would have likely denied the motion. Abdel-Whab argued that his first

motion to reopen was timely because he provided it to prison officials within the time

limitations. However, the Board has determined that the rule of Houston v. Lack, 487


   1
     This court’s review does not extend to any of the BIA’s orders entered before March
28, 2005, because the petition for review was only timely as to that order. See Stone v.
INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d 1028, 1033-34 (3d Cir. 1986).
   2
    This court would also review the Board’s denial of a motion for reconsideration for
abuse of discretion. Nocon, 789 F.2d at 1029.

                                            2
U.S. 266 (1988) (holding that a prisoner’s pro se appeal of a habeas denial was deemed

“filed” at the moment it was delivered to prison officials for mailing to the district court)

is not applicable in determining the timeliness of a motion to reopen filed with the Board.

In re: J- J-, 21 I&N Dec. 976, 982 (BIA 1997). The Board noted that its regulations (now

found at 8 CFR § 1003.38) provide that the date of filing of a notice of appeal is the date

the notice is received by the Board. Id. The Board determined that in order to be

consistent, it should similarly apply the timeliness rule for appeals to motions to reopen or

reconsider. Id. at 983-84. Thus, even if the Board here had considered Abdel-Whab’s

arguments that he timely gave his motion to prison officials, it likely would have denied

the motion to reconsider.3

         Abdel-Whab has not shown that the Board’s discretionary decision was somehow

arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

We will therefore deny the petition.4




   3
     We note that Abdel-Whab made no argument whatsoever regarding the Board’s
denial of his first motion to reopen in the petition filed in this Court at No. 04-4794 (he
instead attempted to challenge the underlying removal order), even though that petition
could have been a timely challenge to that decision.
   4
       The Government’s motion for summary affirmance is denied as moot

                                              3
