Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2368
FARID BELGUENDOUZ
Petitioner,
v.
ALBERTO GONZÁLES,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Dyk,** Circuit Judge,
and Howard, Circuit Judge.
Christopher W. Drinan, with whom Law Office of John K. Dvorak,
P.C., was on brief, for petitioner.
William C. Peachey, Trial Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General,
Civil Division, and Michael P. Lindemann, Assistant Director, were
on brief, for respondent.
December 2, 2005
*
Alberto Gonzáles was sworn in as United States Attorney General
on February 3, 2005. We have therefore substituted Attorney
General Gonzáles for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25(1); Fed. R. App. P. 43(c)(2).
**
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner Farid Belguendouz
("petitioner") appeals the denial of a motion to reconsider by the
Board of Immigration Appeals ("BIA"). He argues that the BIA's
decision was erroneous and an abuse of discretion because his
submission of an Immigrant and Naturalization Service ("INS")1
filing receipt for an I-140 Immigrant Petition for an Alien Worker
served as prima facie evidence that his Application for Alien Labor
Certification had been approved. Because the BIA's order did not
constitute an abuse of discretion, we affirm the BIA's decision.
I. Background
Petitioner is a native and citizen of Algeria. He
entered the United States on September 29, 1999, as a non-immigrant
visitor and was authorized to remain in the country until March 28,
2000. Petitioner overstayed, and on January 16, 2003, the INS
placed petitioner in removal proceedings. The INS alleged that
petitioner was removable as an alien who had overstayed a non-
immigrant visa pursuant to 8 U.S.C. § 1227(a)(1)(B).
On May 14, 2003, petitioner failed to appear at his
hearing before the Boston Immigration Court and was ordered removed
in absentia. Petitioner filed a motion to reopen2 on June 19,
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement.
For simplicity, we refer to the agency as the INS.
2
The Code of Federal Regulations requires that an in absentia
order entered in removal proceedings "may be rescinded only upon a
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2003, seeking relief in the form of being allowed to apply for
adjustment of status (based on his pending I-140 visa petition) or,
in the alternative, voluntary departure. Petitioner first argued
that the in absentia removal order was unjustified because notice
of the hearing was not sent to "the most recent address provided by
the alien" as required by 8 C.F.R. § 1003.26 ("Written notice to
the alien shall be considered sufficient for purposes of this
section if it was provided at the most recent address provided by
the alien.").3 In the alternative, petitioner argued that
reopening his case was warranted because of the existence of
exceptional circumstances. See 8 C.F.R. § 1003.23 (b)(4)(ii). The
Immigration Judge ("IJ") denied petitioner's motion to reopen on
July 9, 2003, finding that petitioner had received adequate notice
of his hearing date and that petitioner's misunderstanding of the
motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was
because of exceptional circumstances . . . ." 8 C.F.R. § 1003.23
(b)(4)(ii) (emphasis added). Further, "no appeal shall lie from an
order of removal entered in absentia." 8 C.F.R. § 1240.15. These
two provisions explain why petitioner did not appeal the removal
order itself.
3
The Notice to Appear ("NTA"), which was personally served upon
petitioner, notified him that any address change must be reported
to the Immigration Court by submission of a Form EOIR-33.
Petitioner apparently misunderstood this requirement and argued
that his submission of an AR-11SR change of address form to the INS
was sufficient to put the Immigration Court on notice of his new
address. The IJ rejected this argument, stating that "only a
notice of address change provided to the Court pursuant to the
warnings contained in the NTA is sufficient to inform the Court of
the need to send correspondence to a new address."
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address requirements did not rise to the level of exceptional
circumstances. Petitioner timely appealed to the BIA.
On June 17, 2004, the BIA adopted and affirmed the
decision of the IJ and dismissed petitioner's appeal. Referring to
materials petitioner had submitted to the IJ,4 the BIA stated that
"even though the respondent's attorney asserts that the respondent
has an approved labor certification, there is no evidence of this,
nor is there evidence of an approved visa petition."5 Given this
lack of evidence, the BIA concluded that petitioner failed to show
his eligibility for relief from removal since an approved visa
petition is required in order for an alien to apply for adjustment
of status. Petitioner timely filed a motion to reconsider with the
BIA on July 6, 2004, arguing that the BIA erred when it concluded
that there was no evidence of an approved labor certification in
denying his motion to reopen. To support his assertion, petitioner
argued that the receipt he received from the INS when he filed an
I-140 Immigrant Petition for an Alien Worker was prima facie
evidence that he was the beneficiary of an approved labor
4
Most significantly, these materials included a filing receipt
for Labor Certification and a filing receipt for an I-140 Immigrant
Petition for an Alien Worker.
5
Petitioner had filed a petition for a visa as a skilled worker
as outlined in 8 U.S.C. § 1153(b)(3)(A)(I). In order to be
approved for this type of visa petition, an alien must first be
approved for alien labor certification. Approval of this visa
petition would have rendered petitioner eligible to apply for
adjustment of status as a permanent resident. See 8 U.S.C. § 1255.
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certification. According to petitioner, an approved labor
certification is required in order to file an I-140 visa petition,
and thus his filing receipt for this petition proves his approved
labor certification status.
On September 9, 2004, the BIA denied petitioner's motion
to reconsider stating that petitioner had "failed to show any error
of fact or law in our previous decision of June 17, 2004, based
upon the record as it existed at that time." The BIA acknowledged
petitioner's newly submitted approved I-140 Immigrant Petition for
an Alien Worker,6 but refused to entertain it as the motion was for
reconsideration.7 The BIA also indicated in a footnote that
petitioner had previously filed a filing receipt for this document
but not an approval notice. Additionally, the BIA found that
petitioner had "not demonstrated any clear error in the Immigration
6
The approval notice for this petition is date February 24, 2004.
The record does not contain an approval notice for petitioner's
labor certification, but petitioner's brief designates the date of
approval as "[o]n or about August 20, 2002." Petitioner provides
no explanation why he did not simply submit the labor certification
approval notice as evidence in support of his motion to reopen.
7
Motions to reconsider deal with errors of fact or law whereas
motions to reopen deal with new evidence. Compare 8 C.F.R.
§ 1003.2(b)(1) ("A motion to reconsider shall state the reasons for
the motion by specifying the errors of fact or law in the prior
Board decision and shall be supported by pertinent authority.")
with 8 C.F.R. § 1003.2(c)(1) ("A motion to reopen proceedings shall
state the new facts that will be proven at a hearing to be held if
the motion is granted and shall be supported by affidavits or other
evidentiary material.").
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Judge's factual findings concerning [petitioner's] failure to
provide a current residential address."
In this appeal, petitioner contends that the BIA abused
its discretion when, in denying his motion for reconsideration, it
failed to treat his I-140 filing receipt as prima facie evidence
that he was a recipient of an approved labor certification.
II. Analysis
Denials of motions to reconsider are reviewed for abuse
of discretion. Ven v. Ashcroft, 386 F.3d 357, 360 (1st Cir. 2004).
Of course, any legal error committed by the BIA constitutes abuse
of discretion by definition. Top Entertainment, Inc. v. Torrejón,
351 F.3d 531, 533 (1st Cir. 2003). "The decision to grant or deny
a motion to . . . reconsider is within the discretion of the
[BIA]," 8 C.F.R. § 1003.2 (a), and the BIA's decision "must be
upheld unless it was made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis." Ven, 386 F.3d at 360 (internal quotation
marks and citation omitted).
The sole issue before this court is whether the BIA
abused its discretion in denying petitioner's motion to reconsider
its denial of petitioner's motion to reopen.8 To the extent
8
Petitioner devotes his brief to establishing abuse of discretion
based on the BIA's failure to consider the I-140 filing receipt as
prima facie evidence of approved labor certification. We therefore
consider waived any argument that the BIA erred in its additional
conclusion in its September 9 order that petitioner did not
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petitioner is arguing the BIA abused its discretion by failing to
consider his filing receipt argument at all, we believe that the
footnote in its September 9 order sufficiently indicates that the
BIA considered, and rejected, petitioner's argument that his I-140
filing receipt is sufficient proof of labor certification approval.
See Lasprilla v. Ashcroft, 365 F.3d 98, 100 (1st Cir. 2004) ("We
have found nothing in the regulations that requires the BIA to
explain its reasons when deciding a motion to reconsider.").
Even if petitioner's argument were characterized as one
that the BIA erred as a matter of law by refusing to construe an I-
140 filing receipt as prima facie evidence of an approved labor
certification, that argument too fails. Petitioner correctly
points out that labor certification is required for an alien to
ultimately be eligible for classification as a skilled worker. See
8 C.F.R. § 204.5(l)(3)(I). However, we think it imprudent to rely
on the filing receipt for an I-140 visa petition as conclusive
evidence that something which is required for the ultimate grant of
that petition exists, and petitioner has not met his burden of
proof in convincing us otherwise. One obvious reason for our
position is the possibility that a filed petition could later be
rejected for being improperly filed due to lack of a required
document. At most, the I-140 filing receipt could have been a
demonstrate any clear error in the IJ's factual findings concerning
petitioner's failure to provide a current residential address.
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basis upon which the BIA inferred the existence of an approved
labor certification if it chose to exercise its broad discretion in
that manner. We see no reason to require this sort of inference
when petitioner could have simply submitted evidence of the labor
certification approval notice, which he claims issued "on or about
August 20, 2002." Petitioner has not adequately explained how the
I-140 filing receipt functions as prima facie evidence of a valid
labor certification and we are therefore convinced that the BIA did
not abuse its discretion by denying petitioner's motion to
reconsider.
Because the BIA's denial of petitioner's motion to
reconsider was not made without a rational explanation, did not
inexplicably depart from established policies, or rest on an
impermissible basis, the decision of the BIA is affirmed.
Affirmed.
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