                                                  Filed:   March 9, 2010

                    UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                                No. 08-1684



FABRICE K. SADHVANI,

                  Petitioner,

             v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



                                 O R D E R



        The court amends its opinion filed December 31, 2009, as

follows:

        On the cover sheet, section 1 -- the status is changed from

“UNPUBLISHED” to “PUBLISHED.”

        On the cover sheet, section 6 -- the status line is changed to

read:     “Petition for review denied by published opinion.       Judge

Gregory wrote the opinion, in which Judge Niemeyer and Judge Davis

joined.”

        On the cover sheet -- the final line referencing the use of

unpublished opinions as precedent is deleted.
                              -2-



     On page 2, opening of opinion -- “PER CURIAM” is changed to

“GREGORY, Circuit Judge.”



                                    For the Court - By Direction



                                        /s/ Patricia S. Connor

                                                Clerk
                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


FABRICE K. SADHVANI,                  
                        Petitioner,
               v.
                                          No. 08-1684
ERIC H. HOLDER, JR., Attorney
General,
                      Respondent.
                                      
            On Petition for Review of an Order
           of the Board of Immigration Appeals.

                Argued: December 1, 2009

               Decided: December 31, 2009

      Before NIEMEYER, GREGORY, and DAVIS,
                   Circuit Judges.



Petition for review denied by published opinion. Judge Greg-
ory wrote the opinion, in which Judge Niemeyer and Judge
Davis joined.


                        COUNSEL

ARGUED: Jonathan Ai, Rockville, Maryland, for Petitioner.
Paul F. Stone, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Respondent. ON BRIEF:
Joseph Peter Drennan, Alexandria, Virginia; Paul Shearman
2                    SADHVANI v. HOLDER
Allen, PAUL SHEARMAN ALLEN & ASSOCIATES,
Washington, D.C., for Petitioner. Tony West, Assistant Attor-
ney General, Civil Division, Douglas E. Ginsburg, Senior Lit-
igation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.


                         OPINION

GREGORY, Circuit Judge:

   Fabrice K. Sadhvani, a native and citizen of Togo, seeks
review of a Board of Immigration Appeals ("BIA") order
denying his motion to reopen his asylum application after we
remanded his case for consideration of the issues in light of
our opinion in William v. Gonzalez, 499 F.3d 329 (4th Cir.
2007) ("William I") (invalidating 8 C.F.R. § 1003.2(d), the
regulation treating an alien’s removal from the United States
after filing a motion to reopen as withdrawal of the motion).
Because the BIA did not abuse its discretion in denying Sadh-
vani’s motion to reopen, we deny the petition for review.

                             I.

                             A.

   Sadhvani entered the United States on a non-immigrant stu-
dent visa on May 26, 1996, and was authorized to remain
until March 30, 1997. He applied for asylum in June 1997,
and removal proceedings were initiated against him in July
when he was served with a notice to appear before the immi-
gration court. He sought relief in the form of an application
for asylum, withholding of removal and protection under the
Convention Against Torture at a hearing on the merits. The
immigration judge ("IJ") denied Sadhvani’s applications for
relief, and granted him voluntary departure until November 2,
                         SADHVANI v. HOLDER                              3
1998, with a removal order to take effect in the event that he
did not depart from the United States. The IJ ruled that his
testimony was not credible and that he failed to establish a
well-founded fear of future persecution. The BIA affirmed the
IJ’s decision in December 2002, and in response, Sadhvani
filed a motion to reopen his asylum application. The BIA
denied the motion on February 14, 2003, and Sadhvani filed
a motion to reconsider, which was also denied. On April 7,
2003, the United States Immigration and Naturalization Ser-
vice ("INS") issued a warrant of removal based on the final
order of removal issued by the IJ on September 1, 1998.

                                    B.

   On December 15, 2005, Sadhvani filed his second motion
to reopen, which is at issue in this appeal. In his second
motion to reopen, he argued that his application was entitled
to further review under 8 C.F.R. § 1003.23(b)(4)(i), which
excepts motions which are based on changed country condi-
tions from the filing deadline requirement. He simultaneously
requested a stay of his removal, which the BIA denied on
December 22, 2005. The Department of Homeland Security
("DHS") removed Sadhvani to Togo on December 28, 2005,
pursuant to the order of removal issued November 2, 1998.
No notification of removal was sent to the INS, despite Sadh-
vani’s pending motion to reopen.

   On March 21, 2006, the BIA granted his motion to reopen,
finding that Sadhvani "met the standards for reopening based
on new evidence of changed circumstances." (J.A. 109.)1
Because Sadhvani was no longer in the country, DHS filed a
motion to reconsider the grant of Sadhvani’s motion to reopen
in light of 8 C.F.R. § 1003.2(d). DHS argued that the BIA did
not have jurisdiction over the motion because Sadhvani was
removed from the United States and therefore under the regu-
  1
    All references to the "J.A. _" are to the Joint Appendix filed with the
briefs in this case.
4                    SADHVANI v. HOLDER
lation, his motion was automatically withdrawn. The BIA
granted the motion on February 28, 2007, and Sadhvani filed
an appeal with this Court. We granted his petition for review
and remanded his case to the BIA in light of our decision in
William I. Upon remand, the BIA denied his motion to reopen
on the ground that it was number-barred under Section
240(c)(7)(A) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1229a(c)(7)(A). (J.A. 2.) Alternatively, the BIA
found that even if his motion were not number-barred, the
motion should be denied because Sadhvani was not eligible
for the relief he sought. Namely, under 8 U.S.C. § 1158(a)(1),
only an alien who is "physically present in the United States"
may apply for asylum. It reasoned that because Sadhvani was
removed pursuant to a valid removal order, he could not chal-
lenge his removal, nor was he eligible for asylum. This appeal
followed.

                              II.

   This Court has jurisdiction to review Sadhvani’s petition of
the BIA’s final order of removal under 8 U.S.C.
§ 1252(a)(2)(D). We review the BIA’s denial of a motion to
reopen asylum claims under the abuse of discretion standard.
Hui Zheng v. Holder, 562 F.3d 647, 651 (4th Cir. 2009) (cit-
ing INS v. Doherty, 502 U.S. 314, 323-24 (1992)). In applying
this standard, the BIA should be reversed "only if the decision
is arbitrary, capricious, or contrary to law." Massis v.
Mukasey, 549 F.3d 631, 636 (4th Cir. 2008) (citing Afanwi v.
Mukasey, 526 F.3d 788, 794 (4th Cir. 2008) (vacated and
remanded on other grounds) (additional citations omitted)).
"The BIA’s denial of a motion to reopen is reviewed with
extreme deference, given that motions to reopen are disfa-
vored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United
States." Massis, 549 F.3d at 636 (quoting Barry v. Gonzales,
445 F.3d 741, 744-45 (4th Cir. 2006)).
                        SADHVANI v. HOLDER                            5
                                  III.

   Petitioner argues that this Court should grant him extraordi-
nary relief because of the injustice that inures when an alien
is removed during the pendency of a motion to reopen.2 The
situation is further compounded where the BIA granted Sadh-
vani relief five months after he was deported. He points to our
opinion in William I to support the argument that his presence
in the United States is irrelevant to whether or not his motion
to reopen should be considered by the BIA. The government
maintains that because Sadhvani was removed pursuant to a
valid order of removal, and is no longer eligible for asylum,
the order denying his motion to reopen was not an abuse of
discretion. Because the BIA did not abuse its discretion in
denying Sadhvani’s motion to reopen, we deny his petition for
review.

   In William I, we held that the regulation promulgated by
the agency, 8 C.F.R. § 1003.2(d), was invalid because it
directly contradicted the statutory language in the INA which
permitted one motion to reopen with no restriction on the
location from which it was filed. William I, 499 F.3d at 332
(citing 8 C.F.R. § 1229a(c)(7)(A)). In light of the explicit lan-
guage in the statute "provid[ing] an alien with the right to file
one motion to reopen, regardless of whether [the alien] is
within or without the country," we remanded William’s case
to the BIA to be addressed on the merits, since the regulation
no longer operates to remove its jurisdiction. Although peti-
tioner correctly asserts that the BIA has jurisdiction to enter-
tain his motion, the BIA did not abuse its discretion in
denying relief based on the statutory requirement that one
  2
    The government noted in oral argument that it is common practice for
aliens to be removed pursuant to valid orders of removal during the pen-
dency of a motion before the immigration court. The practice is checked
by the availability of a stay of removal which would hold the order in
abeyance while proceedings are pending. The motion for a stay was
denied in this case.
6                       SADHVANI v. HOLDER
must be present in the United States to be eligible for asylum.
See 8 U.S.C. § 1158(a)(1).3 Because Sadhvani was removed
pursuant to a valid order of removal, he no longer can pursue
his asylum application.

                                 IV.

    Based on the foregoing, we deny the petition for review.

                             PETITION FOR REVIEW DENIED




    3
   Because we find the BIA was correct in holding that Sadhvani’s claim
was barred by the INA due to his presence outside the country, we need
not consider the number-barred ground for denying Sadhvani relief.
