United States Court of Appeals
For the First Circuit
No. 05-1069
KATE ASEMOTA,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Sam Osagiede and Sam Osagiede & Associates on brief for
petitioner.
Jennifer C. Boal, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondent.
August 25, 2005
LYNCH, Circuit Judge. This is a petition for review of
a December 17, 2004 order of the Board of Immigration Appeals (BIA)
denying a motion under 8 C.F.R. § 1003.2 to reconsider its order of
July 15, 2004. The July 15 order affirmed and adopted an
Immigration Judge's (IJ's) decision denying petitioner's
application for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). In addition, the July 15
order affirmed the IJ's decision not to grant a continuance,
rejected the claim that the IJ had not given petitioner an
impartial and fair hearing, and noted that evidence proffered to
the BIA on appeal was neither new nor previously unavailable. The
BIA refused to revisit the July 15 decision, stating in its
December 17 order that petitioner had not met the requirements for
a motion to reconsider. Because the December 17 order did not
constitute an abuse of discretion, we deny the petition for review.
I.
Petitioner Kate Asemota is a native and citizen of
Nigeria. In February 2002, she applied for asylum, withholding of
removal, and relief under the CAT. In April of that year, the
former INS1 initiated removal proceedings against Asemota. On the
very day the hearing on asylum and removal was to occur, Asemota
1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).
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requested a continuance. The IJ denied this request and denied
Asemota's application for relief.
Asemota timely appealed to the BIA, which adopted and
affirmed the IJ's decision. Asemota then timely filed a motion for
reconsideration of that order. On December 17, 2004, the BIA
denied that motion. This timely petition for review of the BIA's
denial of the motion to reconsider followed.
II.
Asemota makes some arguments that could be construed as
an attempt to attack the BIA's July 15, 2004 order. She failed to
timely petition for review of that order, so we lack jurisdiction
to review it. See 8 U.S.C. § 1252(b)(1) (petitions for review of
final orders of removal must be filed within 30 days); Ven v.
Ashcroft, 386 F.3d 357, 359-60 (1st Cir. 2004) ("A motion to reopen
or reconsider does not toll the period for filing a petition for
judicial review of the underlying order of deportation; in
immigration cases the time to appeal denial orders continues to run
despite the filing of motions to reopen or reconsider the denial of
asylum, withholding of removal, and protection under the CAT.").
Thus, the only issue before us is the denial of the motion to
reconsider.
Under 8 C.F.R. § 1003.2, a party filing a motion to
reconsider must "specify[] the errors of fact or law in the prior
Board decision" and must support the claim of error with "pertinent
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authority." 8 C.F.R. § 1003.2(b)(1). Under BIA precedent, a party
filing a motion to reconsider must present additional legal
arguments, a change of law, or an argument or aspect of the case
that was overlooked. See Matter of Cerna, 20 I. & N. Dec. 399, 403
n.2 (BIA 1991).2 Even if the prerequisites for reconsideration are
met, the BIA has discretion to deny the motion. 8 C.F.R.
§ 1003.2(a).
Our review of the BIA's denial of petitioner's motion to
reconsider is for abuse of discretion. See INS v. Doherty, 502
U.S. 314, 323-24 (1992); Ven, 386 F.3d at 360. We will find an
abuse of discretion only where the "the denial was made without a
'rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis' (such as race)."
Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento
v. INS, 274 F.3d 26, 28 (1st Cir. 2001) (internal quotation marks
omitted)).
We have reviewed the arguments made by Asemota in her
motion to reconsider before the BIA. Asemota urged the BIA to
2
In her brief to this court, petitioner nowhere challenges the
three-pronged test applied by the BIA in deciding whether to grant
her motion to reconsider. Rather, she argues that the BIA "failed
to adhere to its own precedents, and did not provide any reasoning
for departing from those policies and precedents." The BIA clearly
applied its own precedent, Matter of Cerna, in denying the motion
to reconsider. The BIA has applied this same three-prong test in
other cases. See Sousa v. Ashcroft, 393 F.3d 271, 274-75 (1st Cir.
2005). As there was no departure from precedent and petitioner has
not challenged that precedent, the only question is whether the BIA
abused its discretion in the manner in which it applied the
requirements. As we explain in the text, it did not.
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reconsider two things: first, its affirmance of the IJ's denial of
the continuance, and second, its refusal to reverse the IJ's asylum
decision on the grounds of the IJ's "combative role." The BIA
denied Asemota's motion on the ground that it met none of the
prerequisites for the granting of a motion to reconsider. We
agree.
As to the denial of the continuance, Asemota's motion
fails to satisfy any of the three requirements embodied in BIA
precedent and not challenged by petitioner: first, it does not
present additional legal arguments, but merely reiterates ones made
in petitioner's earlier appeal to the BIA; second, it does not
mention any change of law; and third, it does not suggest that any
argument or aspect of the case was overlooked. There was thus no
abuse of discretion in the BIA's denial of the motion to
reconsider.
The "combative role" claim fails for similar reasons.
This portion of the motion fails the BIA's unchallenged three-prong
test for motions to reconsider: first, at most Asemota reargued
previously argued points; second, she mentioned no change of law;
and third, she did not suggest that any argument or aspect of the
case was overlooked. Asemota's motion to reconsider highlights
portions of the transcript that in her view showed improper conduct
by the IJ, but the BIA had thoroughly addressed the "combativeness"
issue -- and the lack of support for it in the record -- in its
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July 15, 2004 decision. Therefore, as with the continuance issue,
there was no abuse of discretion in the BIA's denial of the motion
to reconsider.
Asemota's attempts in her brief to this court to present
a new claim that "the BIA interfered with [her] right to a reasoned
opinion" are unexhausted, and so not before us, and in any event
frivolous.
III.
We deny the petition for review.
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