United States Court of Appeals
For the First Circuit
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No. 01-1338
CESAR NASCIMENTO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Lynch and Lipez, Circuit Judges.
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Mark B. LaRoche for petitioner.
Janice K. O'Grady, Attorney, Office of Immigration Litigation,
United States Department of Justice, with whom Stuart E. Schiffer,
Acting Assistant Attorney General, Civil Division, and Christopher C.
Fuller, Senior Litigation Counsel, were on brief for respondent.
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December 19, 2001
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LYNCH, Circuit Judge. Cesar Nascimento, a citizen of
Cape Verde, was served in 1994 with an Order to Show Cause
charging that he had overstayed his non-immigrant visa. After
a deportation hearing in 1995, an immigration judge granted him
voluntary departure, but he failed to depart by the specified
date. In 1996, he filed a motion to reopen proceedings, seeking
suspension of deportation or, in the alternative, a new order
for voluntary departure. After the deportation hearings, the
immigration judge denied both requests on December 13, 1996.
The immigration judge denied the request for voluntary departure
both because she determined he was ineligible under the statute
(not having shown he was a person of good moral character) and
as a matter of her discretion under the statute. 8 U.S.C. §
1229c(b)(1) (Supp. II 1996).
Nascimento filed a timely appeal with the Board of
Immigration Appeals ("BIA"), which the BIA denied on June 22,
2000. The BIA upheld the denial of voluntary departure on
discretionary grounds, without affirming or reversing the
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Immigration Judge's finding that Nascimento was statutorily
ineligible for relief. The BIA found Nascimento had not
"convinced [it] that he did not make [a series of] misstatements
. . . or that he had a valid excuse for failing to honor his
previous promise to voluntarily depart the United States."
Nascimento did not timely seek judicial review of the BIA's
order.
Nascimento did, however, file a timely motion with the
BIA to reconsider. The federal regulation governing motions for
reconsideration states that such motions "shall state the
reasons for the motion by specifying the errors of fact or law
in the prior Board decision and shall be supported by pertinent
authority." 8 C.F.R. § 3.2(b)(1) (2001). Nonetheless,
Nascimento's motion for reconsideration stated only:
1. BIA improperly considered evidence of Respondent's
eligilbility [sic] and period of residence in the
United States;
2. BIA misconstrued or overlooked the evidence
regarding Respondent's moral character and
3. Respondent reserves the opportunity to raise
additional issues for reconsideration regarding both
his request for voluntary departure and cancellation.
Nothing else was filed or said.
The BIA denied the motion to reconsider on February
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9, 2001. Nascimento then filed with this court a timely
petition for review of the BIA's order denying reconsideration.
The petition is governed by the transition rules of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 § 309(c), Pub. L. No. 104-208, 110 Stat. 3009 (1996)
("IIRIRA"). The petition does not ask for review of the BIA's
affirmance of the denial of suspension of deportation, and so
Nascimento has waived that issue. See Rojas-Reynoso v. INS, 235
F.3d 26, 29 (1st Cir. 2000).
Both parties have briefed the case as though the
substance of the BIA's June 22, 2000 denial of voluntary
departure were at issue. The INS says judicial review over that
decision is barred by the jurisdictional limits set forth in
IIRIRA § 309(c)(4)(E). Nascimento, in turn, attempts to attack
the merits of the Immigration Judge's decision to deny voluntary
departure. We do not consider the merits of the voluntary
departure denial to be before us, as no timely petition was
filed in this court from the June 22, 2000 order. Under IIRIRA
§ 309(c)(4)(C), such petitions for review must be filed within
thirty days of the BIA's final order. This time period runs
from the date of the BIA's affirmance of the Immigration Judge's
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order, not from the BIA's denial of reconsideration. See Stone
v. INS, 514 U.S. 386, 405-06 (1995) (holding that filing motion
for reconsideration does not toll the period for filing a
petition for judicial review of underlying order of
deportation).
Thus, the only issue before us is whether the BIA
abused its discretion in denying the motion for reconsideration.
We have jurisdiction over that issue under our holding in
Bernal-Vallejo v. INS, 195 F.3d 56 (1st Cir. 1999), which states
that IIRIRA § 309(c)(4)(E) precludes review only of
discretionary decisions under the sections enumerated in §
309(c)(4)(E). Id. at 59-60. Motions for reconsideration do not
fall under one of those enumerated sections. Luis v. INS, 196
F.3d 36, 39 (1st Cir. 1999). The BIA's decision to deny
reconsideration is reviewed for abuse of discretion, id.,
meaning that it must be upheld unless it "was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." LeBlanc v. INS,
715 F.2d 685, 693 (1st Cir. 1983) (quoting Balani v. INS, 669
F.2d 1157, 1161 (6th Cir. 1982)). It was not any of those
things.
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The BIA said it denied reconsideration because
Nascimento's stated reasons were "conclusory, unsupported by the
record, and insufficiently detailed to serve as a basis for a
grant of the respondent's motion to reconsider." We agree.
The petition for review is dismissed and the stay of
deportation, which the INS did not oppose, is vacated.
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