Opinion · Court of Appeals for the Second Circuit

Sukhraj Kaur v. Board of Immigration Appeals

413 F.3d 232

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
2005-06-22
Topic
bankruptcy

How later courts describe this case

  • concluding that review is limited to the BIA’s denial of a motion where no petition was filed from the underlying decision denying asylum
  • concluding that the BIA did not err in finding petitioner’s evidence not material because it did not rebut the agency’s underlying adverse credibility determination
  • concluding that the Court was precluded from reaching underlying decision where petition was timely only as to denial of reopening
  • holding that BIA did not abuse its discretion in denying a motion to reopen when a grant of relief would still be precluded due to a prior adverse credibility determination
  • holding that the BIA does not abuse its discretion in denying a motion to reopen where the evidence submitted relates to the same claim the agency found not credible in the underlying proceeding
  • concluding that review is 21 limited to BIA’s denial of a motion where petition is filed only from the denial of 2 1 the motion, and not from the underlying decision denying asylum
  • concluding that BIA does not abuse its discretion in denying a motion to reopen where evidence submitted with that motion relates to same claim the agency found not credible in the underlying proceeding
  • concluding that our review is limited to the 15 decision that is the subject of the petition for review and that we are “precluded 16 from passing on the merits of the underlying . . . proceedings”

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KAUR v. BOARD OF IMMIGRATION APPEALS,413 F.3d 232(2nd Cir. 2005)
Sukhraj KAUR, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
No. 03-40198.
United States Court of Appeals, Second Circuit.
Submitted: June 15, 2005.
Decided: June 22, 2005.
Page 233
Petitioner seeks review of the denial by the Board of Immigration Appeals of her motion to reopen asylum proceedings. We review the decision not to reopen — rather than the merits of petitioner asylum application — for "abuse of discretion," and find none.

Petition denied.
Sukhraj Kaur, pro se, Floral Park, N.Y. for Petitioner.

Steven J. Saltiel, Assistant United States Attorney (Joann M. Swanson, Chief, Civil Division, of counsel; Kevin V. Ryan, United States Attorney for the Northern District of California, on the brief), United States Attorney's Office for the Northern District of California, San Francisco, CA for Respondent.
Before: CABRANES and RAGGI, Circuit Judges, and SAND,fn*District Judge.
PER CURIAM.
Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for review of a June 20, 2003 order of the Board of Immigration Appeals ("BIA" or "Board") denying petitioner's motion to reopen proceedings in order to submit "new evidence" regarding her asylum claim. In an earlier order, dated December 13, 2002, the BIA affirmed a decision by an immigration judge ("IJ") denying petitioner's application for asylum and withholding of removal, and further denied petitioner relief under the United Nations Convention Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85;8 C.F.R. § 208.16. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal.

As a threshold matter, we note that our review is limited to the BIA's decision not to reopen petitioner's removal proceedings. Petitioner did not timely petition for review of the December 13, 2002 order of the BIA that affirmed the IJ's denial of her underlying asylum application. It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA's final exclusion or deportation orders, such as the December 13, 2002 order.SeeStone v. INS,514 U.S. 386,405-06,115 S.Ct. 1537,131 L.Ed.2d 465(1995). We are therefore "precluded from passing on the merits of the underlying exclusion proceedings," and must confine our review to the denial of petitioner's motion to reopen these proceedings.Zhao v. DOJ,265 F.3d 83, 90 (2d Cir. 2001).

We review the BIA's denial of a motion to reopen for abuse of discretion.Zhao,265 F.3d at 92-93. "An abuse of discretion may be found in those circumstances where the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is toPage 234say, where the Board has acted in an arbitrary or capricious manner."Id.at 93 (internal citations omitted).

Petitioner's appellate brief argues the merits of her underlying asylum claim, but does not suggest any reasons why the BIA might have abused its discretion in denying petitioner's motion to reopen removal proceedings.

In any event, upon review of the record of this case, we conclude that the BIA did not abuse its discretion. The statutory framework governing asylum proceedings "does not provide for motions to reopen or reconsider, and the right to make such motions depends entirely on the administrative regulations." 1 Charles Gordon, Stanley Mailman Stephen Yale-Loehr,Immigration Law and Procedure§ 3.05 (2005). BIA regulations, in turn, provide that "[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing."8 C.F.R. § 1003.2(c)(1) (2005);see also Zhao,265 F.3d at 90("[A] motion to reopen asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing. Such motions must state what new facts would be proven at a hearing and be supported by affidavits or other evidentiary material.") (internal citations omitted). In this case, the BIA's June 20, 2003 order clearly explained that the evidence submitted by petitioner in support of her motion was not "material" because it did not rebut the adverse credibility finding that provided the basis for the IJ's denial of petitioner's underlying asylum application.See Ballenilla-Gonzalez v. INS,546 F.2d 515, 520 (2d Cir. 1976) (holding that "[i]mplicit" in the requirement that the party seeking reopening of proceedings "state the new facts to be proved at the reopened hearing" is the "the assumption that no such motion will be granted unless the facts alleged would be sufficient, if proved, to change the result");see also1 Gordon, Mailman Yale-Loehr,ante§ 3.05 (noting that consideration of a motion to reopen includes "an implicit requirement that the facts alleged would be sufficient, if proved, to change the result").

We have considered all of petitioner's arguments and found each of them to be without merit. Accordingly, the petition is denied and the decision of the Board of Immigration Appeals is affirmed.
  1. The Honorable Leonard B. Sand, United States District Judge for the Southern District of New York, sitting by designation. ↩