                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit

No. 04-1149

                               HERMASE AMICY,
                                Petitioner,

                                       v.

                ALBERTO GONZALES, Attorney General,
                            Respondent.*


               ON PETITION FOR REVIEW OF AN ORDER OF

                  THE BOARD OF IMMIGRATION APPEALS



                                    Before

              Lynch, Lipez, and Howard, Circuit Judges.



     Roxana V. Muro and FitzGerald & Company, LLC for petitioner.
     Peter D. Keisler, Assistant Attorney General, Civil Division,
Douglas E. Ginsburg, Senior Litigation Counsel, and Jonathan
Potter, Attorney, Office of Immigration Litigation, Civil Division,
on brief for respondent.



                                June 3, 2005




     *
      Alberto Gonzales was sworn             in as United States Attorney
General on February 3, 2005.                We have therefore substituted
Attorney General Gonzales for John          Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R.           App. P. 43(c)(2).
                Per curiam.     Hermase Amicy petitions for review of a

final order of the Board of Immigration Appeals (BIA) denying her

motion     to    reopen   her   immigration   proceedings.     We   deny    the

petition.

                Amicy, a native and citizen of Haiti, entered the United

States illegally in 1991.          Nine years later, the Immigration and

Naturalization Service (INS)1 initiated removal proceedings under

8 U.S.C. § 1182(a)(6)(A)(i) (governing aliens present in the United

States without admission or parole). Conceding removability, Amicy

applied     for    asylum   and   withholding   of   removal   based   on   the

persecution that she allegedly had suffered in Haiti as a result of

her participation in a pro-democracy “political religious” group.

Amicy claimed that, in 1991, the “Ton Ton Macoutes,” a military

group affiliated with the deposed regime of Jean-Claude Duvalier,

arrested her because of her political activities.              She testified

that during her one-month detainment, she was interrogated, beaten

and raped.2        Her asylum application also stated that her brother

was killed in Haiti in 1999.

                The immigration judge (IJ) denied Amicy's asylum claim as

time-barred. Citing inconsistencies in Amicy's testimony and her

inability to remember events critical to her claim, the IJ also


     1
      In March 2003 the relevant functions of the INS were
reorganized and transferred into the new Department of Homeland
Security.
     2
         Amicy did not mention the rape in her asylum application.

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found Amicy lacked credibility and denied her withholding of

removal application. An order of removal was issued on January 31,

2002. Amicy's appeal to the BIA conceded that her asylum claim was

time-barred, but argued that she was eligible for withholding of

removal.    On June 10, 2003, the BIA adopted the IJ's decision and

dismissed Amicy's appeal.

            Three months after the BIA's final order of removal,

Amicy moved the BIA to reopen her immigration proceedings.             She

claimed that her inability to remember the events surrounding her

persecution was the result of significant psychological trauma. In

support of her motion, she submitted a psychiatric evaluation that

stated     that   Amicy   is   impaired   by   “difficulties   in   spatial

organization” and “distractibility,” and that these symptoms are

“consistent with a diagnosis of Major Depressive Disorder.”             She

also submitted a picture allegedly showing her son with gun shot

wounds.     On December 29, 2003, the BIA denied Amicy's motion to

reopen, finding that the new evidence did not adequately rebut the

IJ's adverse credibility determination and that Amicy had not

established that the new evidence was previously unavailable.

             The BIA may grant a motion to reopen when the petitioner

establishes (1) “a prima facie case for the underlying substantive

relief sought,” and (2) that the motion introduces “previously

unavailable, material evidence.” Fesseha v. Ashcroft, 333 F.3d 13,

20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94, 107 (1988));


                                    -3-
see also 8 C.F.R. § 1003.2(c)(1).                    Even when the petitioner

satisfies both of these requirements, however, the BIA retains the

discretion to grant or deny the motion.                  See Fesseha, 333 F.3d at

20; 8 C.F.R. § 1003.2(a).            Thus, we will only reverse the BIA for

an abuse of discretion.            See Fesseha, 333 F.3d at 20.

              Amicy has made no showing that her newly proffered

evidence was unavailable and could not have been presented to the

IJ at the removal hearing.                Cf. Elboukili v. INS, 125 F.3d 861,

1997 WL 616222, at *2 (10th Cir. 1997) (unpublished opinion)

(denying petitioner's request to supplement the record with a

psychological       evaluation       because     “this   means   of   demonstrating

petitioner's        mental        state    has    always    been      available    to

petitioner”).        She therefore has failed to establish the second

requirement for reopening an immigration proceeding.                    Because the

BIA was within its discretion to deny Amicy's motion to reopen on

that       basis   alone,    we    need    not   consider     whether    Amicy    has

established a prima facie claim for relief.3


       3
      We also decline to consider Amicy's contention that the BIA
should have granted her relief because the IJ failed to provide a
detailed explanation in support of his adverse credibility
determination. All final orders of the BIA must be challenged in
this court within 30 days. 8 U.S.C. § 1252(b)(1). The final order
denying Amicy's underlying claims for asylum and withholding of
removal was issued by the BIA on June 10, 2003. Amicy's motion to
reopen did not enlarge the filing period for judicial review of her
underlying claims, nor did her petition to review the BIA's
December 29, 2003 order (denying her motion to reopen) preserve her
challenge to the underlying removal order. See Ven v. Ashcroft,
386 F.3d 357, 359-60 (1st Cir. 2004). Because Amicy did not timely
petition for review of the BIA's June 10, 2003 order, we lack

                                           -4-
          Accordingly, the petition for review is denied.




jurisdiction to consider the underlying denial.   See Zhang v. INS,
348 F.3d 289, 292 (1st Cir. 2003).

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