Asemota v. Gonzales

• Decision Date: 25 August 2005
• Docket Number: No. 05-1069.,05-1069.
• Citation: 420 F.3d 32
• Parties: Kate ASEMOTA, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

420 F.3d 32

Kate ASEMOTA, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-1069.

United States Court of Appeals, First Circuit.

Submitted July 19, 2005.

Decided August 25, 2005.

Sam Osagiede and Sam Osagiede & Associates on brief for petitioner.

Jennifer C. Boal, Assistant United States Attorney, and Michael J. Sullivan United States Attorney, on brief for respondent.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

This is a petition for review of a December 17, 2004 order of the Board of Immigration Appeals (BIA) denying a motion under 8 C.F.R. § 1003.2 to reconsider its order of July 15, 2004. The July 15 order affirmed and adopted an Immigration Judge's (IJ's) decision denying petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In addition, the July 15 order affirmed the IJ's decision not to grant a continuance, rejected the claim that the IJ had not given petitioner an impartial and fair hearing, and noted that evidence proffered to the BIA on appeal was neither new nor previously unavailable. The BIA refused to revisit the July 15 decision, stating in its December 17 order that petitioner had not met the requirements for a motion to reconsider. Because the December 17 order did not constitute an abuse of discretion, we deny the petition for review.

I.

Petitioner Kate Asemota is a native and citizen of Nigeria. In February 2002, she applied for asylum, withholding of removal, and relief under the CAT. In April of that year, the former INS¹ initiated removal proceedings against Asemota. On the very day the hearing on asylum and removal was to occur, Asemota requested a continuance. The IJ denied this request and denied Asemota's application for relief.

Asemota timely appealed to the BIA, which adopted and affirmed the IJ's decision. Asemota then timely filed a motion for reconsideration of that order. On December 17, 2004, the BIA denied that motion. This timely petition for review of the BIA's denial of the motion to reconsider followed.

II.

Asemota makes some arguments that could be construed as an attempt to attack the BIA's July 15, 2004 order. She failed to timely petition for review of that order, so we lack jurisdiction to review it. See 8 U.S.C. § 1252(b)(1) (petitions for review of final orders of removal must be filed within 30 days); Ven v. Ashcroft, 386 F.3d 357, 359-60 (1st Cir.2004) ("A motion to reopen or reconsider does not toll the period for filing a petition for judicial review of the underlying order of deportation; in immigration cases the time to appeal denial orders continues to run despite the filing of motions to reopen or reconsider the denial of asylum, withholding of removal, and protection under the CAT."). Thus, the only issue before us is the denial of the motion to reconsider.

Under 8 C.F.R. § 1003.2, a party filing a motion to reconsider must "specify[] the errors of fact or law in the prior Board decision" and must support the claim of error with "pertinent authority." 8 C.F.R. § 1003.2(b)(1). Under BIA precedent, a party filing a motion to reconsider must present additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked. See Matter of Cerna, 20 I. & N. Dec. 399, 403 n. 2 (BIA 1991).² Even if the prerequisites for reconsideration are met, the BIA has discretion to deny the motion. 8 C.F.R. § 1003.2(a).

Our review of the BIA's denial of petitioner's motion to reconsider is for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ven, 386 F.3d at 360. We will find an abuse of discretion only where the "the denial was made without a `rational explanation, inexplicably departed from established policies, or rested on an impermissible basis' (such as race)." Zhang v. INS, 348 F.3d 289, 293 (1st Cir.2003) (quoting Nascimento v. INS, 274 F.3d 26, 28 (1st Cir.2001) (internal quotation marks omitted)).

We have reviewed the arguments made by Asemota in her motion to reconsider before the BIA. Asemota urged the BIA to reconsider two things: first, its affirmance of the IJ's denial of the continuance, and second, its refusal to reverse the IJ's asylum decision on the grounds of the IJ's "combative role." The BIA denied Asemota's motion on the ground that it met none of the prerequisites for the granting of a motion to reconsider. We agree.

As to the denial of the continuance, Asemota's motion fails to satisfy any of the three requirements embodied in BIA precedent and not challenged by petitioner: first, it does not present additional legal arguments, but merely reiterates ones made in petitioner's earlier appeal to the BIA; second, it does not mention any change of law; and third, it does not suggest that any argument or aspect of the case was overlooked. There was thus no abuse of discretion in the BIA's denial of the motion to reconsider.

The "combative role" claim fails for similar reasons. This portion of...