                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2008

Morales Ruiz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4407




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 07-4407


                           JUAN CARLOS MORALES RUIZ,
                                                Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent


                         On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                  (BIA No. A98-906-399)
                  (U.S. Immigration Judge: Honorable Eugene Pugliese)


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 18, 2008

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                               (Filed: September 30, 2008)


                               OPINION OF THE COURT


PER CURIAM.

       Juan Carlos Morales Ruiz petitions for review of an order of the Board of

Immigration Appeals (BIA), which denied his motion for reconsideration. For the

reasons that follow, we will deny the petition.
       Morales is a native and citizen of Colombia. He entered the United States in

March 2004 and stayed longer than permitted. He applied for asylum and related relief,

based on his allegation that he was persecuted in the past due to his homosexuality, and

that he will be persecuted and/or tortured in the future in Colombia for the same reason.

The Immigration Judge (IJ) denied relief, finding that what Morales had experienced in

the past was discrimination rather than persecution.

       On appeal, the BIA agreed that Morales did not experience persecution in the past

and agreed that Morales had not met his burden of showing a likelihood that he would be

persecuted or tortured in the future. Morales filed a petition for review of this decision,

but it was untimely. This Court closed the case on that basis on November 27, 2007.

See Morales Ruiz v. Attorney General, No. 07-3829.

       In the meantime, Morales filed a motion to reconsider with the BIA. The BIA

denied the motion on October 31, 2007, stating that there was “no new legal argument or

aspect of the case that we previously overlooked.” Morales filed a timely petition for

review of that decision.

       We do not have jurisdiction to review the IJ’s underlying order of removal nor do

we have jurisdiction to review the BIA’s initial order of August 22, 2007 dismissing

Morales’ appeal, because he did not file a petition for review in this Court within 30 days

of that order. See Stone v. INS, 514 U.S. 386, 405 (1995) (“[A] deportation order is final,

and reviewable, when issued. Its finality is not affected by the subsequent filing of a

motion to reconsider.”); Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir. 2007). Thus, our

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review extends only to the order denying Morales’ motion for reconsideration.

       A motion for reconsideration is a “request that the Board reexamine its decision in

light of additional legal arguments, a change of law, or perhaps an argument or aspect of

the case which was overlooked.” In re Ramos, 23 I. & N. Dec. 336, 338 (BIA 2002)

(citations omitted). To succeed on his petition for review, the petitioner must show that

the BIA’s decision denying reconsideration was somehow “arbitrary, irrational, or

contrary to law.” See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (citations omitted).

We find that the petitioner has not made this showing.

       Morales points out numerous reasons why he believes the IJ erred in finding that

he was not persecuted. However, given the procedural posture of this case, the only

question is whether the Board abused its discretion in denying the motion for

reconsideration. We have compared Morales’ brief on appeal to the Board (A.R. 57-89)

with his motion for reconsideration (A.R. 16-32). The motion for reconsideration raises

essentially the same arguments that were raised in the brief. As noted in the Board’s

decision denying the motion, the motion does not appear to contain “additional legal

arguments, [or] a change of law . . . .” Although Morales argues that the Board

“overlooked” arguments or aspects of the case the first time around, the Board says in its

decision that it did not do so. The Board does not abuse its discretion in denying a

motion for reconsideration where the motion merely repeats arguments made on direct

appeal. Khan v. Gonzales, 495 F.3d 31, 36-37 (2d Cir. 2007). We will therefore deny the



                                             3
petition for review.1




   1
     We could, alternatively, deny the petition because Morales waived any challenge to
the denial of his reconsideration motion by failing to raise it in his opening brief. Chen v.
Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). The brief contains very little that could be
interpreted as pertaining to the BIA’s decision on reconsideration. See Voci v. Gonzales,
409 F.3d 607, 610 n.1 (3d Cir. 2005) (“An issue is waived unless a party raises it in its
opening brief, and for those purposes a passing reference to an issue . . . will not suffice to
bring that issue before this court”) (internal citations and quotations omitted). The failure
is not cured by raising the challenge in a reply brief. Gambino v. Morris, 134 F.3d 156,
161 n.10 (3d Cir. 1998).

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