United States Court of Appeals
For the First Circuit
No. 08-1350
XIAOFENG LIU,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Martin D. Harris on brief for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Kristina R. Sracic, Trial Attorney, on brief for
respondent.
January 12, 2009
SELYA, Circuit Judge. The petitioner, Xiaofeng Liu, is
a Chinese national. He overstayed his visitor's visa, remained in
the United States illegally, and eventually applied for asylum.
When the authorities responded by placing him in removal
proceedings, he conceded removability but cross-applied for
cancellation of removal, asylum, and other redress.
After a full hearing, an immigration judge (IJ) denied
the petitioner's pleas for relief and ordered him deported to his
homeland. The petitioner appealed to the Board of Immigration
Appeals (BIA). The BIA, without opinion, summarily affirmed the
IJ's ukase.
The petitioner eschewed the opportunity to seek judicial
review of this decision. Instead, on March 19, 2007, he moved for
reconsideration, alleging that his "personal situation has been
further compromised." To bolster this allegation, he attached a
statement dated March 7, 2007, in which he maintained, without a
shred of support, that he would be subject to persecution in the
Republic of China because he had applied (albeit unsuccessfully)
for asylum in the United States. He also reiterated the claims
originally made before the IJ.
On February 27, 2008, the BIA denied the motion to
reconsider, finding that, for the most part, the motion "merely
repeat[ed]" arguments and evidence previously advanced. In
addition, the BIA noted that the petitioner did not specifically
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identify any error of law or fact in the prior decisions of either
the BIA or the IJ. Because the petitioner did not furnish
"objective material evidence or legal authority" sufficient to
support his motion, the BIA denied it. This timely petition for
judicial review followed.
We need not tarry. The only decision before us is the
BIA's denial of the motion to reconsider; the original order
denying asylum and other relief is not implicated.1 See 8 U.S.C.
§ 1252(b)(1); see also Stone v. INS, 514 U.S. 386, 394-400 (1995).
Motions for reconsideration are disfavored in immigration
cases. See, e.g., INS v. Doherty, 502 U.S. 314, 323 (1992). The
party seeking reconsideration has the burden of establishing that
it is warranted. INS v. Abudu, 485 U.S. 94, 110-11 (1988). At a
bare minimum, "a motion for reconsideration has to give the
tribunal to which it is addressed a reason for changing its mind."
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
Virtually by definition, a motion for reconsideration
posits that the decider — here, the BIA — made some sort of error
in the earlier decision. See Turri v. INS, 997 F.2d 1306, 1311 n.4
(10th Cir. 1993). It follows that the moving party must specify a
particular error of law or fact in that earlier decision. See 8
1
Be that as it may, we may nonetheless review the underlying
decision to the extent necessary to determine whether the BIA
abused its discretion in denying the motion to reconsider. See
Abdullah v. Gonzales, 461 F.3d 92, 100 (1st Cir. 2006); Esenwah v.
Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004).
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U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). When the motion
simply regurgitates contentions that were previously made and
rejected, the movant has no legal basis to insist upon
reconsideration. See Ahmed, 388 F.3d at 249.
This is such a case. Consequently, disposition of this
petition does not require extended discussion. Thus, we reject the
petitioner's arguments out of hand, pausing only to make four brief
comments.
First, we review the BIA's denial of a motion to
reconsider solely for abuse of discretion. Doherty, 502 U.S. at
323-24; Abudu, 485 U.S. at 107; Onwuamaegbu v. Gonzales, 470 F.3d
405, 407 (1st Cir. 2006); see also 8 C.F.R. § 1003.2(a). This is
an extremely deferential standard, under which we must uphold the
BIA's decision unless that decision is "arbitrary, irrational, or
contrary to law." Abdullah, 461 F.3d at 99 (citation and internal
quotation marks omitted). The BIA's denial of reconsideration here
does not fall within that pejorative description.
Second, the record bears out the BIA's conclusion that
the petitioner's motion for reconsideration was deficient because
it failed to identify any material error of law or fact in the
earlier decisions. This circumstance, in and of itself, justifies
the rejection of the motion. See 8 C.F.R. § 1003.2(b)(1); see also
Zhao v. United States Dep't of Justice, 265 F.3d 83, 90-91 (2d Cir.
2001).
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Third, the assertion that the petitioner will be exposed
to persecution because he unsuccessfully sought asylum is a red
herring. For one thing, that assertion was never voiced before the
IJ and, thus, was not properly before the BIA. See Makhoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). For another thing, the
assertion is meritless: if the mere filing of an asylum application
were a ground for defeating removal, that would create a perverse
incentive that would totally frustrate the government's legitimate
interest in enforcement of the immigration laws.
Fourth, and finally, the petitioner's brief seems to be
a thinly-veiled jeremiad bemoaning the BIA's election to affirm the
IJ's order without opinion. But the BIA has the authority, under
applicable regulations, to use the "affirmance without opinion"
mechanism. See 8 C.F.R. §1003.1(e)(4)(i). Moreover, we have
explicitly upheld the validity of that regulation, Albathani v.
INS, 318 F.3d 365, 377 (1st Cir. 2003), and that holding is
controlling here. The "affirmance without opinion" practice is,
therefore, generally acceptable.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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