Zimunya v. Gonzales

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-2395

OTILIA ZIMUNYA,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-230-666)

Argued: December 1, 2005 Decided: January 13, 2006

Before WIDENER, WILKINSON, and TRAXLER, Circuit Judges.

Petition denied in part and dismissed in part by unpublished per
curiam opinion.

ARGUED: Bokwe Godwill Mofor, Silver Spring, Maryland, for
Petitioner. Bryan Stuart Beier, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, Civil Division, Michelle Gorden, Senior Litigation
Counsel, Office of Immigration Litigation, Annette M. Wietecha, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Otilia Zimunya petitions for review of an order of the Board

of Immigration Appeals denying her motion to reconsider and reopen

the denial of asylum and to reinstate voluntary departure. For the

reasons that follow, we dismiss her petition in part and deny it in

part.

I.

Zimunya, a native and citizen of Zimbabwe, entered the United

States on a nonimmigrant B-2 visa as a visitor for pleasure. She

was placed in removal proceedings, however, after remaining in the

United States longer than her approved period of stay. Zimunya

conceded removability, and applied for asylum, withholding of

removal, and relief under the Convention against Torture (CAT).

Her application for relief was premised on her purported

involvement with Zimbabwe’s opposition party Movement for

Democratic Change (MDC). On November 26, 2002, the immigration

judge denied all of Zimunya’s claims for relief, concluding that

Zimunya failed to establish past persecution or a well-founded fear

of future persecution if she were to return to Zimbabwe. In lieu

of removal, however, the immigration judge granted Zimunya’s

request for voluntary departure, allowing her 60 days to depart the

United States. See 8 U.S.C.A. § 1229c(b)(2) (West 1999)

(permitting a discretionary grant of permission to depart

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voluntarily for a period of up to 60 days following removal

proceedings).

On April 28, 2004, the BIA affirmed the decision of the

immigration judge without opinion. The BIA did not reinstate the

period of voluntary departure. See In re A-M—, 23 I. & N. Dec.

737, 743-44 (BIA 2005) (indicating that “the timely filing of an

appeal with the [BIA] . . . tolls the running of the time

authorized by the Immigration Judge for voluntary departure,” which

allows the BIA to reinstate this period after it issues a decision

denying relief). Zimunya did not seek direct judicial review of

this decision.

Instead, on July 24, 2004, nearly three months after the BIA’s

decision, Zimunya filed a motion for the BIA to reconsider its

order of April 28, 2004. Zimunya also moved to reopen proceedings

on the grounds that circumstances had changed following the initial

hearing in that “the government of [Zimunya’s] country has stepped

up its persecution of members of her political party.” J.A. 6.

Finally, Zimunya requested that the BIA “reinstate voluntary

departure that expired during the course of [Zimunya’s]

administrative appeal.” J.A. 6.

The BIA denied this motion. To the extent that Zimunya was

seeking reconsideration of its previous order, the BIA denied

relief because Zimunya’s motion was untimely. See 8 C.F.R.

§ 1003.2(b)(2) (2005) (requiring a motion to reconsider to “be

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filed with the Board within 30 days after the mailing of the Board

decision”). The BIA likewise denied Zimunya’s motion to reopen,

concluding that the additional evidence presented by Zimunya did

not warrant reopening the case. Additionally, the BIA denied the

request for reinstatement of voluntary departure, although it did

not elaborate on its reasoning.

Zimunya seeks judicial review of the BIA’s denial of the

motion to reopen or reconsider, arguing that the BIA abused its

discretion in denying her motion. Zimunya also seeks review of the

BIA’s denial of her request for reinstatement of voluntary

departure, contending that the BIA abused its discretion in so

doing.

II.

The primary focus of Zimunya’s petition for review is her

claim that her “request for asylum or withholding should have been

granted” in the first instance. Brief of Petitioner at 28. We

lack jurisdiction to review the merits of the BIA’s April 28, 2004,

decision to deny asylum, withholding of removal, and relief under

the CAT. Zimunya failed to petition for review of that decision

within thirty days, as required by statute. See 8 U.S.C.A.

§ 1252(b)(1) (West 1999). This time period is “jurisdictional in

nature and must be construed with strict fidelity to [its] terms.”

Stone v. INS, 514 U.S. 386, 405 (1995). A motion to reopen is not

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to be used as a substitute for an untimely appeal, and that is

precisely what Zimunya is attempting to do here. Thus, to the

extent that Zimunya challenges the merits of the denial of her

application for relief from removal, we dismiss the petition.

To the extent that Zimunya challenges the Board’s denial of

her motion to reopen, we review for abuse of discretion. See INS

v. Doherty, 502 U.S. 314, 323-24 (1992); Stewart v. INS, 181 F.3d

587, 595 (4th Cir. 1999). A denial of a motion to reopen is

reviewed with extreme deference, given that motions to reopen “are

disfavored . . . [because] every delay works to the advantage of

the deportable alien who wishes merely to remain in the United

States.” Stewart, 181 F.3d at 595 (internal quotation marks

omitted); see M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en

banc). Thus, we will reverse the BIA’s decision for abuse of

discretion only if is “arbitrary, irrational, or contrary to law.”

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (internal

quotation marks omitted). The BIA may not grant a motion to reopen

“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). We have reviewed the record and cannot conclude

that the BIA’s determination that Zimunya’s additional evidence

fails to establish a well-founded fear of persecution is arbitrary,

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irrational or impermissible. Accordingly, we find that the BIA did

not abuse its discretion in denying Zimunya’s motion to reopen.

We likewise deny Zimunya’s petition for review of the BIA’s

denial of her motion to reconsider. As with a motion to reopen, we

review the BIA’s decision regarding a motion to reconsider for

abuse of discretion. See Zhong Guang Sun v. United States Dep’t of

Justice, 421 F.3d 105, 107 (2d Cir. 2005). The BIA denied relief

because Zimunya’s motion was untimely. See 8 C.F.R.

§ 1003.2(b)(2). This decision was not irrational or contrary to

law, and Zimunya makes no attempt to contradict the BIA’s

conclusion or explain how we could possibly conclude the BIA abused

in discretion.

Finally, we are without jurisdiction to review Zimunya’s

challenge to the BIA’s refusal to reinstate voluntary departure.

Voluntary departure is a discretionary form of relief from removal.

If certain statutory prerequisites are fulfilled, “[t]he Attorney

General may permit an alien voluntarily to depart the United

States,” 8 U.S.C.A. § 1229c(b)(1) (emphasis added), and thereby

avoid various adverse consequences that attach to removal. Even if

the alien establishes statutory eligibility for voluntary removal,

the immigration judge will grant relief only upon a finding that

the alien merits “a favorable exercise of discretion.” In Re

Thomas, 21 I. & N. Dec. 20, 22 (BIA 1995).

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 We are precluded by statute from reviewing BIA decisions to

grant or deny certain types of discretionary relief:

“Notwithstanding any other provision of law, no court shall have

jurisdiction to review--(I) any judgment regarding the granting of

relief under section 1182(h), 1182(I), 1229b, 1229c, or 1255 of

this title. . . .” 8 U.S.C.A. § 1252(a)(2)(B)(I) (emphasis added).

The BIA’s decision to deny voluntary departure under section 1229c

is specifically enumerated as one of the agency decisions not

subject to judicial review. See Ngarurih v. Ashcroft, 371 F.3d

182, 193 (4th Cir. 2004).

In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L.

No. 109-13, Div. B, 119 Stat. 231 (2005), which clarified the scope

of judicial review under section 1252(a)(2)(B): “Nothing in

subparagraph (B) . . . which limits or eliminates judicial review,

shall be construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.” 8

U.S.C.A. § 1252(a)(2)(D). Thus, direct judicial review is

available for constitutional or legal questions arising from the

denial of the forms of discretionary relief enumerated in section

1252(a)(2)(B)(I). See Rodriguez-Castro v. Gonzales, 427 F.3d 316,

319 (5th Cir. 2005). However, BIA decisions denying relief as a

matter of discretion are still not subject to review. See Vasile

v. Gonzales, 417 F.3d 766, 769 (7th Cir. 2005).

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 Zimunya unquestionably seeks review of the BIA’s discretionary

denial of her request to reinstate voluntary departure. She argues

that the BIA “abused its discretion by failing to consider all

positive factors in [her] case, and mischaracterized negative

factors.” Supplemental Brief of Petitioner at 3. Zimunya raises

no constitutional claims or claims involving the application or

interpretation of the Immigration and Nationality Act or the

agency’s regulations. Accordingly, we are without jurisdiction to

review the BIA’s denial of Zimunya’s request for reinstatement of

voluntary departure.

PETITION DENIED IN PART
AND DISMISSED IN PART

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