Dorville v. Garland

• Docket Number: 21-6640 NAC
• Decision Date: 30 August 2023
• Parties: DWIGHT HILLJEFF DORVILLE, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

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DWIGHT HILLJEFF DORVILLE, Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.

No. 21-6640 NAC

United States Court of Appeals, Second Circuit

August 30, 2023

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30^th day of August, two thousand twenty-three.

For Petitioner: Craig Relles, Law Office of Craig Relles, White Plains, NY.

For Respondent: Brian Boynton, Principal Deputy Assistant Attorney General; Nancy Friedman, Senior Litigation Counsel; Margaret A. O'Donnell, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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PRESENT: DENNIS JACOBS, RAYMOND J. LOHIER, JR., EUNICE C. LEE, Circuit Judges.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Dwight Hilljeff Dorville, a native and citizen of St. Lucia, seeks review of a December 2, 2021 decision of the BIA denying his motion to reopen and reconsider. In re Dwight Hilljeff Dorville, No. A 205 308 642 (B.I.A. Dec. 2, 2021). We assume the parties' familiarity with the underlying facts and procedural history.

We have reviewed the BIA's denial of the motion for abuse of discretion. See Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider must be filed within 30 days of the final order of removal, and a motion to reopen must be filed

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within 90 days. 8 U.S.C. § 1229a(c)(6)(B), (7)(C)(i); 8 C.F.R. § 1003.2(b)(2), (c)(2). Dorville does not dispute that his 2021 motion was untimely filed eight years after his 2013 final removal order.

Despite the untimely filing, the BIA addressed Dorville's argument regarding the agency's jurisdiction, treating it as a motion to reconsider. "A motion to reconsider contests the correctness of the original decision based on the previous factual record, as opposed to a motion to reopen, which seeks a new hearing based on new or previously unavailable evidence." In re O-S-G-, 24 I. &N. Dec. 56, 57-58 (B.I.A. 2006); see also 8 U.S.C. § 1229a(c)(6)(C), (7)(B); 8 C.F.R. § 1003.2(b), (c). The only error Dorville alleged in the underlying proceedings was that, pursuant to Pereira v. Sessions, 138 S.Ct. 2105 (2018), the agency lacked jurisdiction because his notice to appear ("NTA") lacked the time and date of his hearing. Dorville does not raise this claim here. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming issue waived when not meaningfully challenged on appeal). Regardless, the claim is foreclosed by Banegas Gomez v. Barr, 922 F.3d 101, 110-12 (2d Cir. 2019), which held that...