F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 22, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
VICTOR NAJERA-RODRIGUEZ,
Petitioner,
v. No. 04-9604
(Agency No. A93-187-057)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General, *
Respondent.
ORDER AND JUDGMENT **
Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure. Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Victor Najera-Rodriguez petitions for review of the Board of Immigration
Appeals’ (BIA) decision denying his motion to reconsider and his motion to
remand. An immigration judge (IJ) denied petitioner’s request for cancellation of
removal on December 4, 2002 based on petitioner’s conviction for domestic
violence. Petitioner appealed to the BIA. While the appeal was pending,
petitioner filed a motion to remand to allow the IJ to consider the effect of an
August 2003 order setting aside his conviction for domestic violence. On June 2,
2004, the BIA affirmed the denial of cancellation of removal and denied the
motion to remand. Petitioner did not seek review of that decision in this court;
instead, on July 1, 2004, petitioner filed a motion to reconsider and a second
motion to remand with the BIA. The BIA denied both the motion to reconsider
and the second motion to remand on October 5, 2004 and petitioner appealed from
that order. 1 We affirm.
Petitioner contends that the BIA committed reversible error in finding that
petitioner did not establish eligibility to remand his case to the IJ based on
changed circumstances surrounding his criminal conviction. This contention,
1
The government filed a motion to dismiss this petition for review arguing
that it is untimely because it was filed on the thirty-first day after the BIA’s
decision, November 5, 2004. The records of the court reveal that the petition was
actually received on November 4, 2004, but that it was not placed on the docket
until November 5, 2004. This was a clerical error. The Clerk of Court is directed
to amend the docket to reflect that the petition for review was filed on
November 4, 2004.
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however, was the basis for petitioner’s first motion to remand. In its June 2, 2004
order, the BIA denied petitioner’s request to remand to present evidence that his
conviction had been set aside. Because petitioner did not seek review of that
decision, we lack jurisdiction to review it. See Infanzon v. Ashcroft, 386 F.3d
1359, 1361 (10th Cir. 2004) (noting lack of jurisdiction where petitioner failed to
timely petition from BIA’s order).
In his motion to reconsider and his second motion to remand, petitioner
sought relief solely on the basis of his alleged membership in the Catholic Social
Services (CSS) litigation. As part of the settlement of the CSS litigation, eligible
aliens were permitted to apply for legalization as Special Agricultural Workers
during a reopened application period. Petitioner argued that he was eligible to
pursue temporary resident status because the CSS litigation formed an
independent basis for relief for those class members. Petitioner did not, however,
renew his argument concerning the BIA’s previous denial of his first request to
remand. See Admin. R. at 16. The BIA’s denial of this second motion is the only
order subject to our review.
Petitioner asserts that the BIA erred in its decision not to remand to the IJ
so that he could present evidence of his membership in the CSS class action. To
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be entitled to a motion to reopen, 2 petitioner must “state the new facts that will be
proven at a hearing to be held if the motion is granted.” 8 C.F.R. § 1003.2(c)(1).
The motion will 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.” Id. In his motion, petitioner
simply asserts that he is a CSS class member and attaches a copy of his CSS
worksheet. As the BIA noted in its decision, this evidence is not new. Admin R.
at 2. Rather, the evidence is cumulative of what was in the record at the time of
the BIA’s June 2, 2004 order affirming the IJ’s decision. Id. at 2 (explaining that
the denial in 1994 of petitioner’s application for CSS membership was an exhibit
in the administrative record during petitioner’s first appeal to the BIA).
Accordingly, petitioner has not demonstrated that the BIA abused its discretion in
denying his motion. See Tang v. Ashcroft, 354 F.3d 1192, 1194 (10th Cir. 2003).
The decision of the BIA is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
2
Although petitioner titled his motion a “Motion to . . . Remand,” Admin R.
at 16, the BIA treated it as a motion to reopen. Petitioner does not assert that this
was error.
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