                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1756




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                        No. 04-1756
                                        __________

                                   VYTAS VERBEJUS,
                                                 Petitioner

                                             vs.

                              ALBERTO R. GONZALES,*
                          Attorney General of the United States,
                                                       Respondent.
                                     __________

                     On Petition for Review of an Order of Removal
                        from the Board of Immigration Appeals
                               U.S. Department of Justice
                       Executive Office for Immigration Review
                                 (BIA No. A79-762-271)
                                      __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 27, 2005
                                    ___________

           Before: SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges

                              (Opinion Filed: June 15, 2005)
                                      __________

                                         OPINION
                                        __________




       *
        Attorney General Alberto Gonzales has been substituted for former Attorney General
John Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
Garth, Circuit Judge:

       Writing, as we do, only for the benefit of the parties, we recite only those facts

essential to decide this appeal. Vytas Verbejus, a native and citizen of Lithuania,

petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion

to reconsider his deportation case. In so doing, Verbejus also challenges several aspects,

both procedural and substantive, of the underlying deportation order, centering on the

behavior of the Immigration Judge (“IJ”) during his deportation proceeding. We are thus

called upon to review the final order of deportation, as well as the order denying the

motion to reconsider. These orders are independently reviewable final orders.

        According to 8 U.S.C. § 1252(b), a petition for review of a final order of removal

“must be filed not later than 30 days after the date of the final order of removal.” This

time period is “jurisdictional in nature and must be construed with strict fidelity to [its]

terms.” Stone v. INS, 514 U.S. 386, 405 (1995). Moreover, the filing of a subsequent

motion to reconsider a final order of deportation does not toll the 30-day period for

seeking review of the underlying order and does not render the underlying order

non-final. Id.; see also Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986) (neither

filing a motion to reopen nor motion to reconsider suspends the time for filing a petition

for review of the underlying order). Here, the BIA issued the final order of removal on

October 7, 2003, but Verbejus did not petition for review of this decision until March 19,

2004. He thus failed to file a timely petition for review of the BIA’s order affirming the



                                              -2-
IJ’s decision. Rather, he petitioned for review of the BIA’s March 1, 2004 decision

denying his motion to reconsider. As noted, the filing of a motion to reconsider does not

toll the 30-day limitations period. See id. We thus lack jurisdiction to reach Verbejus’s

challenges to the underlying deportation order denying his applications for relief from

removal.

       We nevertheless feel compelled to make known our disapproval of the IJ’s conduct

here, conduct which was adversarial, humiliating and hostile. While we appreciate the

difficulties faced by immigration judges in asylum cases, and while we are satisfied that

the petitioner’s rights were not violated in this case, we remain mindful that there is a

proper, principled, and professional way to conduct immigration proceedings. Although

immigration judges have, as one of their primary functions, the determination of

credibility, immigration judges would be well-advised, in future cases, to avoid even the

appearance of prejudgment of the credibility of witnesses and the validity of a petitioner’s

claims.

          We are left to determine only whether the BIA erred by denying the motion to

reconsider. Denials of motions for reconsideration are reviewed for abuse of discretion.

See 8 C.F.R. § 1003.2(a); Nocon, 789 F.2d at 1033 (reviewing the BIA’s denial of a

motion to reconsider for abuse of discretion.). A motion to reconsider, governed by 8

C.F.R. § 1003.2(b)(1), requires an applicant to “specify[] the errors of fact or law in the

prior Board decision and shall be supported by pertinent authority.” The BIA here found



                                             -3-
that Verbejus, in his motion to reconsider, merely reiterated the same arguments to the

denial of his applications for relief from removal, thereby failing to state any specific

legal or factual errors in the BIA’s October 7, 2003 decision. Likewise, Verbejus

advances no argument before us which would warrant overturning the BIA’s denial of his

motion. Accordingly, we hold that the BIA did not abuse its discretion in denying the

motion to reconsider.

       We will DENY the Petition for Review of the BIA’s decision.




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