Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-14-2008
Vujicic v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4487
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4487
___________
ZIVAN VUJICIC; DAVORKA VUJICIC,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A29 756 205; A70 866 762)
Immigration Judge: Honorable Annie S. Garcy
Submitted under Third Circuit LAR 34.1(a)
on October 15, 2008
Before: McKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: November 14, 2008)
OPINION
__________
PER CURIAM
Zivan Vujicic is a native of Serbia. His wife, Davorka Vujicic is a native and citizen
of Slovenia. They entered the United States in 1989, with authorization to remain for six
months, but overstayed their admission period. In July 1994, the petitioners were charged
with deportability pursuant to former Immigration and Nationality Act (“INA”)
§ 241(a)(1)(B) [8 U.S.C. § 1231(a)(1)(B)]. They applied for asylum, withholding of
removal, and protection under the United Nations Convention Against Torture (“CAT”). The
Immigration Judge (“IJ”) denied relief. The Board of Immigration Appeals (“BIA”) affirmed
the IJ’s decision in May 1997. In January 2000, the petitioners filed a motion to reopen
based upon alleged changed country conditions. The BIA denied the motion on January 23,
2003.
In September 2004, the petitioners moved the BIA to reissue its decision, alleging the
Board failed to mail notice of its January 2003 decision to their attorney’s new address. The
BIA denied the motion to reissue in January 2005, noting that the record did not contain a
change of address form, mail returned as undeliverable, or any evidence of administrative
error. The petitioners filed a petition for review, which we denied on April 6, 2006. See
Vujicic v. Attorney General, 173 Fed. Appx. 993 (3d Cir. 2006). In our opinion, we stated
that there is no reason why the BIA has an obligation to reissue a decision where it has
followed its own procedures. Here the Board has followed the procedures outlined in the
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regulations and practice manual by mailing notice of its decision to counsel’s address of
record-the address provided on the only Form EOIR-27 entered in petitioners’ file. Counsel
did not comply with the BIA’s procedure for address changes. He did not file an amended
Form EOIR-27, and further, he did not write to the BIA directly to advise them of his change
of address. Instead, he merely copied the Board on a change of address notice sent to the
petitioners. Given that petitioners’ counsel failed to properly change his address with the
BIA, it was his error that resulted in the failure to receive notice of the BIA decision.
Id. at 996. Accordingly, we concluded that the BIA was within in its discretion in denying
the petitioners’ motion to reissue. Id.
The petitioners filed another motion to reopen and reissue in May 2007. This motion
was based on Matter of Elezi, an unpublished BIA decision involving one of the petitioners’
counsel’s other clients. In Matter of Elezi, the BIA exercised its sua sponte authority to
reissue a decision that apparently had not been received by counsel. In November 2007, the
Board denied the petitioners’ motion to reopen and reissue, noting that Vujicic, 173 Fed.
Appx. 993, “is the binding law of the case and reflects there was no error in [the] denial of
the [first] motion [to reissue].” The Board further noted that Matter of Elezi has no binding
effect and involved “an error with the Clerk’s office in updating the file with a new address,”
a fact absent in the petitioners’ case. The BIA also declined to exercise its sua sponte
authority to reopen. Finally, the BIA found that the petitioners presented no evidence of
changed country conditions that would warrant an exception to the time and number
3
limitations on motions to reopen.
The petitioners, through counsel, filed a petition for review of the BIA’s decision.
The denial of a motion to reopen is reviewed for abuse of discretion. See Lu v. Ashcroft, 259
F.3d 127, 131 (3d Cir. 2001). As the Supreme Court has stated, the regulations “plainly
disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110 (1988). Thus, in order to succeed
on the petition for review, the petitioners must ultimately show that the discretionary decision
was somehow arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d
Cir. 1994).
The petitioners are essentially relitigating the issue raised and rejected in their prior
petition for review, namely, whether the BIA abused its discretion in denying their motion
to reissue its January 2003 decision. The only difference is that in this case the petitioners
rely on Matter of Elezi, a recent, unpublished BIA decision. In particular, the petitioners
argue that the BIA should reissue its prior decision because it granted a motion to reissue in
Matter of Elezi. But, as the Board noted, this case is distinguishable from Elezi. In Elezi,
the record indicated that the BIA had received a letter from counsel requesting that his
address be updated in records of the Clerk’s office. No such letter appears in the present
record. See Vujicic, 173 Fed. Appx. at 996 n.2 (distinguishing, on similar grounds, the case
of “another of counsel’s clients in which the Board agreed to reissue a decision that had been
mailed to counsel’s former address.”). Under these circumstances, we conclude that the BIA
4
properly denied the petitioners’ motion to reopen and reissue.1
For the foregoing reasons, we will deny the petition for review.
1
To the extent that the petitioners allege that the BIA incorrectly refused to sua sponte
reopen the proceedings, we lack jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472,
475 (3d Cir. 2003). There is also no error in the BIA’s determination that the petitioners’
motion to reopen is time- and number-barred, and that no exception to those limitations
exists. See 8 C.F.R. § 1003.23(b)(4)(i).
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