Kaur v. Board of Immigration Appeals

• Citation: 413 F.3d 232
• Decision Date: 22 June 2005
• Docket Number: No. 03-40198.,03-40198.
• Parties: Sukhraj KAUR, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

413 F.3d 232

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.

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,^* 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. See Stone 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 to say, 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...