Copto-Lavalle v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1674

VICTOR DE JESUS COPTO-LAVALLE,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: April 12, 2010 Decided: August 25, 2010

Before TRAXLER, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.

Petition denied in part; dismissed in part by unpublished per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

William J. Sanchez, WILLIAM J. SANCHEZ, PA, Miami, Florida, for
Petitioner. Tony West, Assistant Attorney General, Mark C.
Walters, Senior Litigation Counsel, Glen T. Jaeger, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Victor De Jesus Copto-Lavalle, a native and citizen of

Mexico, petitions for review of an order of the Board of

Immigration Appeals (“Board”) denying as numerically barred his

second motion to reopen. We dismiss in part and deny in part

the petition for review.

An alien may file one motion to reopen within ninety

days of the entry of a final order of removal. 8 U.S.C.

§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2009).

This time limit does not apply if the basis for the motion is to

seek asylum or withholding of removal based on changed country

conditions, “if such evidence is material and was not available

and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (2006); see also 8

C.F.R. § 1003.2(c)(3)(ii). This court reviews the denial of a

motion to reopen for abuse of discretion. INS v. Doherty, 502

U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400

(4th Cir.), cert. denied, 130 S. Ct. 137 (2009). Motions to

reopen are “disfavored” because every delay works to the

advantage of the alien who wants to remain. Doherty, 502 U.S.

at 323. This court will reverse the Board only if the decision

is arbitrary, irrational or contrary to law. Mosere, 552 F.3d

at 400.

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We find the Board did not abuse its discretion in

denying Copto-Lavalle’s second motion to reopen because it was

numerically barred.

Insofar as Copto-Lavalle seeks to have this court

review the Board’s denial of his first motion to reopen, we are

without jurisdiction. Pursuant to 8 U.S.C. § 1252(b)(1) (2006),

Copto-Lavalle had thirty days from the date of the Board’s order

denying his first motion to reopen to petition this court for

review. 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). Further, it is “not subject to

equitable tolling.” Id.; see Fed. R. App. P. 26(b) (prohibiting

this court from extending the time to file “a petition to . . .

review an order of an administrative agency, board, commission,

or officer of the United States, unless specifically authorized

by law”). The Board’s order denying the first motion to reopen

was filed January 9, 2009. Copto-Lavalle did not file the

petition for review until June 15, 2009, or clearly beyond the

thirty-day period in which to file a petition for review. Thus,

this court is without jurisdiction to review the January 9, 2009

order.

Accordingly, we deny in part and dismiss in part the

petition for review. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the

decisional process.

PETITION DENIED IN PART;
DISMISSED IN PART