Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-6-2008
Valenzuela Barrera v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4529
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4529
ELISEO VALENZUELA BARRERA
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A73-189-930)
Immigration Judge: Honorable Mirlande Tadal
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 6, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: August 6, 2008)
OPINION
PER CURIAM
Eliseo Valenzuela Barrera, a citizen of Guatemala, seeks review of a final order
issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we
will deny the petition for review.
Petitioner entered the United States in 1993, without being admitted or paroled
after inspection by an Immigration Officer. In 2005, Petitioner was served with a Notice
to Appear, which charged that he was in the United States without authorization.
Petitioner admitted the allegations and applied for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). After an evidentiary hearing, on
July 21, 2005 the Immigration Judge (“IJ”) issued its decision and order of removal to
Guatemala, concluding that Petitioner had failed to meet his burden of proof regarding
his claims. On February 14, 2007, the BIA affirmed the IJ’s decision. On May 14, 2007,
Petitioner filed a motion to reopen the BIA’s decision based on new evidence. The BIA
denied the motion on August 17, 2007, noting, inter alia, a number of authenticity
questions about the evidence, the motion’s lack of any supporting affidavit, and the
evidence’s lack of specific relevance to Petitioner’s circumstances. On September 17,
2007, Petitioner filed a motion for reconsideration of the BIA’s decision. The BIA
denied the motion on October 23, 2007. On November 23, 2007, Petitioner filed with
this Court his petition for review.
Although Petitioner urges otherwise, our review is limited to the BIA’s October
23, 2007 decision denying Petitioner’s motion for reconsideration. See Nocon v. I.N.S.,
789 F.2d 1028, 1032-33 (3d Cir. 1986) (final deportation orders and orders denying
motions to reconsider are independently reviewable; a timely petition for review must be
filed with respect to the specific order sought to be reviewed); Stone v. INS, 514 U.S.
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386, 405 (1995) (a motion for reconsideration does not toll the time to file a petition for
review of a final deportation order). We review the denial of a motion for
reconsideration for an abuse of discretion. Nocon, 789 F.2d at 1033. Under that standard
of review, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or
contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
A motion for reconsideration must specify the errors of law or fact in the BIA’s
prior decision. 8 C.F.R. § 1003.2(b)(1). It is a “request that the Board re-examine its
decision in light of additional legal arguments, a change of law, or perhaps an argument
or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec 336, 338 (BIA
2002) (en banc) (internal quotation and citations omitted). In this case, Petitioner filed
his motion for reconsideration to seek additional time for authenticating the evidence
submitted with his earlier-adjudicated motion to reopen. Petitioner also argued that the
BIA erred by not granting the motion as unopposed. In denying the motion for
reconsideration, the BIA cited section 1003.2(b)(1) and concluded that the motion
specified no error of fact or law in the earlier decision warranting reconsideration of the
August 17, 2007 decision, notwithstanding the government’s lack of response to the
motion to reopen. Upon review of the relevant documents in the administrative record,
we agree with the BIA’s conclusion. We add that Petitioner’s argument that the BIA
erred in denying the motion to reopen simply because it was unopposed has no merit,
given the restrictive standards governing motions to reopen, as well as the discretionary
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nature of such motions. See Sevoian, 290 F.3d at 173. In sum, we discern no abuse of
the BIA’s discretion in its October 23, 2007 order.
For the foregoing reasons, we will deny the petition for review.
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