Hafeez v. Holder

07-5692-ag Hafeez v. Holder BIA A097 515 475 A097 515 474 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 27 th day of January, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 PIERRE N. LEVAL, 10 PETER W. HALL, 11 Circuit Judges. 12 13 ______________________________________ 14 15 MUMTAZ HAFEEZ, SAMIA CHAUDHRY, 16 Petitioners, 17 18 v. 07-5692-ag 19 NAC 20 ERIC H. HOLDER JR., 1 UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 ______________________________________ 24 25 26 27 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric. H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 1 FOR PETITIONERS: Pro Se 2 3 FOR RESPONDENT: Gregory G. Katsas, Acting Assistant 4 Attorney General, Civil Division, 5 Michelle Gorden Latour, Assistant 6 Director, Jessica E. Sherman, Trial 7 Attorney, Office of Immigration 8 Litigation, Civil Division, United States 9 Department of Justice, Washington, D.C. 10 UPON DUE CONSIDERATION of this petition for review of a 11 Board of Immigration Appeals (“BIA”) decision, it is hereby 12 ORDERED, ADJUDGED, AND DECREED that the petition for review 13 is DENIED. 14 Mumtaz Hafeez, a native and citizen of Pakistan, and 15 her daughter, Samia Chaudhry, a native of Saudia Arabia and 16 a citizen of Pakistan, seek review of a November 26, 2007 17 order of the BIA denying their motion to reconsider. In re 18 Mumtaz Hafeez, Samia Chaudhry, Nos. A097 515 475/474 (B.I.A. 19 Nov. 26, 2007). We assume the parties’ familiarity with the 20 underlying facts and procedural history of the case. 21 As a preliminary matter, Petitioners argue that the 22 agency erred by denying their motion to reopen. However, we 23 may not review their challenge to the agency’s denial of 24 their motion to reopen, because only the BIA’s denial of 25 their motion to reconsider is properly before us. See 26 8 U.S.C. § 1252(b)(1); Ke Zhen Zhao v. U.S. Dep’t of 27 Justice, 265 F.3d 83, 90 (2d Cir. 2001). 2 1 A motion to reconsider must be filed with the BIA 2 within 30 days after the mailing of the BIA decision being 3 challenged. 8 U.S.C. § 1229a(a)(c)(6); 8 C.F.R. 4 § 1003.2(b)(2). There is no exception to the filing 5 deadline for such motions. Matter of J-J-, 21 I.&N. Dec. 6 976, 978 (B.I.A. 1997). We review the BIA’s denial of a 7 motion to reconsider for abuse of discretion. See Jin Ming 8 Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The 9 agency’s regulations provide that a motion to reconsider 10 must specify errors of fact or law in the BIA’s decision. 11 See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 93. 12 The BIA did not abuse its discretion in denying 13 Petitioners’ motion to reconsider. See 8 C.F.R. 14 § 1003.2(b)(2). The BIA denied Petitioners’ motion to 15 reopen on May 23, 2007, and they did not file their motion 16 to reconsider until June 25, 2007. Petitioners argue that 17 their motion was timely because it was mailed on Saturday, 18 June 23, 2007; however the last day Petitioners could have 19 timely filed their motion was Friday, June 22, 2007. 20 Moreover, their argument concerning equitable tolling fails 21 because they never contended that they received ineffective 22 assistance in filing their motion to reconsider. See 8 23 C.F.R. § 1003.2(b)(2); Matter of J-J-, 21 I.&N. Dec. at 978. 3 1 In any event, the BIA reasonably denied Petitioners’ 2 motion to reconsider based on their failure to specify 3 errors of fact or law in the agency’s prior decision. See 8 4 C.F.R. § 1003.2(b)(1). Petitioners essentially repeated the 5 same arguments that they made in their motion to reopen. 6 See Jin Ming Liu, 439 F.3d at 111. To the extent the motion 7 included new arguments, Petitioners could have raised these 8 arguments on appeal to the BIA but neglected to do so. A 9 “motion to reconsider based on a legal argument that could 10 have been raised earlier in the proceedings will be denied.” 11 Matter of O-S-G-, 24 I. & N. Dec. 56, 58 (B.I.A 2006). 12 Accordingly, the BIA did not abuse its discretion in denying 13 Petitioners’ motion to reconsider. See Jin Ming Liu, 439 14 F.3d at 111. 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, any stay of 17 removal that the Court previously granted in this petition 18 is VACATED, and any pending motion for a stay of removal in 19 this petition is DISMISSED as moot. Any pending request for 20 oral argument in this petition is DENIED in accordance with 21 Federal Rule of Appellate Procedure 34(a)(2), and Second 22 Circuit Local Rule 34(b). 23 FOR THE COURT: 24 Catherine O’Hagan Wolfe, Clerk 25 26 27 4