Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1713
FREDY AUGUSTO ARIAS-VALENCIA,
Petitioner,
v.
MICHAEL B. MUKASEY,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, Circuit Judges,
and Tashima,** Senior Circuit Judge.
Martin D. Harris, on brief for petitioner.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Civil Division, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Barry J. Pettinato, Assistant
Director, on brief for respondent.
April 17, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey is substituted for former Attorney General Alberto R.
Gonzáles as respondent.
**
Of the Ninth Circuit, sitting by designation.
Per Curiam. Fredy Augusto Arias-Valencia ("Arias"), a
native of Colombia, arrived in the United States in 1988. After
numerous hearings, missed appearances, and failures to depart the
United States, Arias made a motion to reconsider and remand which
was denied by the Board of Immigration Appeals ("BIA") on April 11,
2007. Arias contends that the Immigration Judge ("IJ") who heard
his case abused his discretion when he denied the motion. After
careful consideration, we deny the petition for review.
I. Background
Arias, a native of Colombia, entered the United States on
October 11, 1988. The following day, the Immigration and
Naturalization Service ("INS") issued an order to show cause
alleging that Arias was subject to deportation for entry without
inspection under the Immigration and Nationality Act ("INA")
§ 241(a)(2), 8 U.S.C. § 1231(a)(2). On January 27, 1989, Arias
failed to appear for his hearing, and the IJ ordered him deported
in absentia. On May 26, 1995, Arias filed a motion to reopen his
proceedings. He claimed that he did not receive his hearing notice
in 1989 because it was misaddressed and that he was eligible to
apply for adjustment of status through his mother, then a permanent
resident of the United States. At a hearing on March 26, 1996,
Arias expressed a desire to apply for suspension of deportation.
The IJ granted him until December 2, 1996, to do so; he failed to
file the application. On January 2, 1997, the IJ found that Arias
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had abandoned his opportunity to apply for suspension of
deportation. Furthermore, the IJ found him ineligible to adjust
his status through his mother because her conditional resident
status had been terminated. The IJ determined that Arias was
deportable as charged in the order to show cause. Arias applied
for, but was denied, suspension of deportation and adjustment of
status on January 2, 1997. He was, however, granted voluntary
departure on February 1, 1997.
Arias never departed the United States. On March 12,
1997, he requested that the BIA permit a late-file appeal and allow
him to consolidate his case with his mother's. The BIA denied the
request on August 4, 1997, and determined that Arias's explanation
as to why he continued to miss deadlines did not demonstrate
circumstances that established a proper basis for certification of
an appeal. The BIA rejected the appeal as untimely. On May 18,
1998, Arias filed a motion to reconsider this decision. On
June 28, 2000, the BIA denied the motion as untimely and declined
to exercise its discretion sua sponte to reopen or reconsider the
case.
On September 3, 1999, Arias married Sara Arias, a U.S.
citizen. Together they have two minor children. Melissa Arias was
born in 1999 and she suffers from severe asthma; Ericka Arias was
born in 2000. As a result of the marriage, Arias became the
beneficiary of an approved I-120 application on October 14, 1999.
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Arias was supposed to return to Colombia to adjust his status and
complete processing of his application. When he failed to appear,
his visa petition was denied.
Arias filed another motion to reopen in April 2006. He
alleged that his new family circumstances changed his case. On
June 21, 2006, the IJ, noting Arias's "repeated abuse of the filing
deadlines," denied his motion to reopen as untimely. On July 19,
2006, Arias appealed the IJ's denial of his untimely motion. The
BIA affirmed the IJ's decision and dismissed Arias's appeal. On
January 12, 2007, Arias filed a motion to reconsider requesting
that the BIA remand the case to the IJ to allow him to present a
claim for protection under Article 3 of the Convention Against
Torture ("CAT"). The BIA denied the motion to reconsider on
April 11, 2007, concluding that Arias failed to establish that it
had committed any errors of law or fact in its December 15, 2006
decision. The BIA also determined that Arias's motion was
successive and untimely and that he did not qualify for an
exception to the applicable time or numerical limitations for
filing such a motion; it also determined that a sua sponte
reopening of Arias's case was not warranted. Arias petitioned the
denial of his motion to reconsider.
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II. Discussion
A. Standard of Review
This court ordinarily reviews the BIA's denial of a
motion to reopen under the abuse of discretion standard.1 Kaweesa
v. Gonzáles, 450 F.3d 62, 67 (1st Cir. 2006). "Our review is
highly deferential, focusing on the rationality of the decision to
deny . . . reopening, not on the merits per se, of the underlying
claim." Abdullah v. Gonzáles, 461 F.3d 92, 99 (1st Cir. 2006). We
will uphold the BIA's decision "'unless it is arbitrary,
irrational, or contrary to law.'" Id. (quoting Ahwazi v. INS, 751
F.3d 1120, 1122 (9th Cir. 1985)).
B. Analysis
Arias argues that his case should be re-examined in light
of changed circumstances. See In re Cerna, 20 I. & N. Dec. 399,
1
A motion to reconsider must set forth either an error of law or
an error of fact. See 8 C.F.R. § 1003.23(b)(2). The Government
argues that Arias failed to put forth either and that he merely
argues a change in personal circumstances. We agree. His motion
did not identify any change of law or establish any argument or
aspect of his case that was overlooked. He only argued new facts.
The motion is more correctly defined as a motion to reopen, which
seeks to present new facts that would entitle him to relief from
deportation. Compare 8 C.F.R. § 1003.23(b)(2) ("A motion to
reconsider shall state the reasons for the motion by specifying the
errors of fact or law in the Immigration Judge's prior decision and
shall be supported by pertinent authority."), with 8 C.F.R.
§ 1003.23(b)(3) ("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."); see also In re Cerna, 20 I. & N. Dec. 399,
400 (BIA 1991). In any event, a motion to reconsider is also
reviewed under the same abuse of discretion standard. See
Onwuameagbu v. Gonzáles, 470 F.3d 405, 407 (1st Cir. 2006).
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404 (BIA 1991). He submits that the health of his young daughter,
a U.S. citizen, would be put in jeopardy if he returned to
Colombia, and that his marriage to a U.S. citizen and the health of
his daughter were not taken into account by the BIA. Furthermore,
Arias contends that the political situation in Colombia has changed
since 1997 such that if he returns to Colombia with his family, he
and his family will be targeted by the FARC because his family
members are U.S. citizens. While he concedes that his CAT motion
to reopen is untimely, he claims that the change in his own
circumstances and those of his family are compelling reasons that
should be considered by this court. We do not agree.
The BIA properly denied the motion and "provided
'specific, cogent, and supportable explanations'" for its denial.
Chanthou Hem v. Mukasey, 514 F.3d 67, 73 (1st Cir. 2008) (quoting
Simo v. Gonzáles, 445 F.3d 7, 11 (1st Cir. 2006)) (alteration
omitted). Arias's motion is also barred because "[a]n alien may
file one motion to reopen proceedings," 8 U.S.C. § 1229a(c)(7)(A),
unless an exception applies to the numerical limitation, 8 C.F.R.
§ 1003.2(c)(3). None of the exceptions apply to him, and,
therefore, the BIA did not abuse its discretion. See Chen v.
Gonzáles, 415 F.3d 151, 153 (1st Cir. 2005). Arias has filed
numerous motions to reopen with the BIA; the current one is a near-
reproduction of his prior motions.
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The BIA also properly denied Arias's motion as untimely.
His order of deportation is dated January 2, 1997, and he did not
voluntarily depart the United States by February 1, 1997. As his
deportation order became final on March 22, 1999, a motion to
reopen for the purposes of applying for protection under the CAT
was required to be filed by June 21, 1999. See 8 C.F.R.
§ 1003.23(b)(1).
The BIA found that Arias failed to show a material change
in country conditions that would qualify him for an exception to
the time and numerical limitations for motions to reopen. The
documentary evidence Arias submitted with his motion -- newspaper
articles and country reports -- was already in the record. Arias
submitted new evidence that demonstrates civil strife in Colombia
generally, but the evidence does not illustrate any changed
circumstances that are "material so as to warrant reopening."
Mabikas v. INS, 358 F.3d 145, 148 (1st Cir. 2004) (internal
quotation marks and citation omitted). Arias has failed to show
that the BIA, in denying the motion, acted in a manner that is
"'arbitrary, irrational, or contrary to law.'" Abdullah, 461 F.3d
at 99 (quoting Ahwazi, 751 F.2d at 1122).
Arias has avoided immigration officials for nearly twenty
years, and in that time he has made a good life for himself. He is
married to a U.S. citizen, is raising smart, high-achieving
children, and is active at his daughters' school. But
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it would be ironic, indeed, if petitioner[]
. . . who [has] remained in the United States
illegally following an order of deportation,
[was] permitted to have a second and third
bite at the apple simply because [he] managed
to marry and have children while evading
authorities. This apparent gaming of the
system in an effort to avoid deportation is
not tolerated by the existing regulatory
scheme.
Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). In the past, Arias
has shown nothing but contempt for immigration officials and has
offered feeble excuses for why he did not turn up (or depart) as
instructed. He has been granted voluntary departure twice, but he
chose not to take advantage of those possibilities. Indeed, he has
neglected to take advantage of any of the opportunities that
immigration officials have offered him in the past. "Even
immigration proceedings must at some point come to an end."
Palam-Mazariegos v. Keisler, 504 F.3d 144, 147 (1st Cir. 2007).
The time for these proceedings to come to an end was long ago.
III. Conclusion
For the foregoing reasons, the petition for review is
denied.
Denied.
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