United States Court of Appeals
For the First Circuit
No. 04-1396
04-1397
SAOVRY VEN and BOPHA KIM,
Petitioners,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Lynch, Circuit Judges.
John B. Seabrook on brief for petitioners.
Jamie M. Dowd, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
David V. Bernal, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
October 22, 2004
LYNCH, Circuit Judge. Petitioners Saovry Ven and her
daughter, Bopha Kim, are natives and citizens of Cambodia. They
were admitted into the United States on July 13, 1997, as
nonimmigrant visitors with authorization to remain until January
12, 1998; they overstayed. On June 11, 1999, the former
Immigration and Naturalization Service (INS) issued the petitioners
a Notice to Appear, charging them with being removable for having
remained in the United States for longer than permitted.
On August 31, 1999, the petitioners, with the assistance
of counsel, appeared before an Immigration Judge (IJ). They
conceded removability and submitted an application for asylum,
withholding of removal, and protection under Article III of the
Convention Against Torture (CAT). In the alternative, the
petitioners sought voluntary departure. In April, 2000, the IJ
held the removal hearing. On April 27, 2000, the IJ granted
voluntary departure to the petitioners, and denied all other
requested relief. The petitioners timely appealed the IJ's order
to the Board of Immigration Appeals (BIA).
While the appeal was pending, Ven says she married a
Cambodian native who was granted asylum in the United States. On
August 7, 2002, she, along with her daughter, filed a motion with
the BIA to hold their appeal of the IJ's order in abeyance, pending
the outcome of her second husband's application for adjustment of
status. On March 25, 2003, the BIA issued a final order which
-2-
affirmed the IJ's decision to deny relief and also denied the
motion to hold the appeal in abeyance, finding that Ven had failed
to meet her burden to show the marriage was bona fide, that her
husband had successfully adjusted his own status, or that an
application to adjust status had been filed on behalf of either Ven
or her daughter.
On April 21, 2003, the petitioners filed a motion to
reopen and a renewed application for asylum with the BIA based on
the changed personal circumstances of the petitioners and
additional evidence of the turmoil in Cambodia. The BIA denied
this motion on September 9, 2003.
On October 8, 2003, the petitioners filed a motion to
reconsider the denial of the motion to reopen, and the BIA denied
this motion on February 17, 2004. The BIA found that Ven and her
daughter had not shown a factual or legal aspect of the case that
the BIA had improperly overlooked and that they had not presented
any new arguments which persuaded the BIA to alter its previous
decision. The petitioners timely appealed to the First Circuit
this February 17, 2004 decision of the BIA to deny the motion to
reconsider the denial of the motion to reopen. We affirm the
February 17, 2004 BIA decision. No timely appeal was taken from
the BIA's March 25, 2003 order affirming the IJ's decision or the
BIA's September 9, 2003 order denying the motion to reopen.
-3-
I.
Saovry Ven and her minor daughter, Bopha Kim, left
Cambodia a few days after the coup of July, 1997. In this coup,
Hun Sen overthrew the elected government of Prince Ranariddh, and
many members of FUNCINPEC, the party supporting Ranariddh, were
killed. Ven's first husband, An Kim, a member of the national
police and FUNCINPEC, secured visas to the United States for
himself and his family, but he did not join Ven and their daughter,
Bopha Kim, in the United States. It appears that Ven's husband was
killed, but the IJ found it is unclear why or by whom. Ven
testified that she received this information by phone in August of
1998 from her brother, who still lives in Cambodia.
On June 5, 2001, after the IJ granted voluntary departure
and while in the United States, Ven says she married Samnang Hin,
also a native of Cambodia. He was a FUNCINPEC member, who fled
Cambodia and was granted asylum in the United States.
Petitioners, Ven and her daughter, argued to the agency
and to us that they qualify for asylum, withholding of removal, and
protection under the CAT because they have a well-founded fear of
future persecution due to the continuing persecution of FUNCINPEC
members and their supporters by Hun Sen supporters. As the widow
and daughter of a FUNCINPEC member, the petitioners also fear this
type of retribution. Ven also believes that her recent marriage to
a former FUNCINPEC member, who fled the country and received asylum
-4-
in the United States, exposes her and her daughter to an even
greater threat if they are forced to return to Cambodia.
II.
The petitioners ask us to reverse (1) the BIA's order of
March 25, 2003, affirming the IJ's denial of asylum, withholding of
removal, and protection under the CAT, (2) the BIA's order of
September 9, 2003, denying the motion to reopen based on changed
personal and country circumstances, and (3) the February 17, 2004
denial of the motion to reconsider. The first two issues are not
before us because petitioners failed to take a timely appeal from
either of those orders.
All final BIA orders must be appealed to this court
within 30 days. 8 U.S.C. § 1252(b)(1). "This need to timely
appeal is a strict jurisdictional requirement." Zhang v. INS, 348
F.3d 289, 292 (1st Cir. 2003). Petitioners incorrectly assume that
no final order was entered when the BIA affirmed the IJ on March
25, 2003. That is not so. If petitioners wished to challenge that
order, they had to file a petition with the court within the 30
days. A motion to reopen or reconsider does not toll the period
for filing a petition for judicial review of the underlying order
of deportation; in immigration cases the time to appeal denial
orders continues to run despite the filing of motions to reopen or
reconsider the denial of asylum, withholding of removal, and
-5-
protection under the CAT. See Stone v. INS, 514 U.S. 386, 405-06
(1995); Nascimento v. INS, 274 F.3d 26, 28 (1st Cir. 2001).
Accordingly, the only issue before us is whether the BIA
abused its discretion in denying the motion for reconsideration of
its denial of the motion to reopen the petitioners' case.
III.
Motions for reconsideration 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. § 1003.2(b)(1). "The purpose of a motion to reconsider is
not to raise new facts, but to demonstrate that the BIA erred as a
matter of law or fact." Zhang, 348 F.3d at 293. The motion to
reconsider alleges that the September 9, 2003 decision of the BIA
not to reopen was defective in some regard.
The BIA's denial of reconsideration is reviewed only for
abuse of discretion. It must be upheld unless it "was made without
a 'rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Id. (citing
Nascimento, 274 F.3d at 28). Because of the implications of these
types of decisions for foreign relations, the "deference [given] to
agency decisions on petitions for reopening or reconsideration in
other administrative contexts apply with even greater force in the
[immigration] context." INS v. Abudu, 485 U.S. 94, 110 (1988).
-6-
The BIA's February 17, 2004 order denying the motion to reconsider
its denial of the motion to reopen passes this deferential test.
The petitioners filed a motion for reconsideration and
other relief on October 8, 2003. In the motion, they argued that
the BIA committed factual error when denying the motion to reopen
on September 9, 2003, by failing to consider the significance of
the petitioners' changed circumstances, including reports of the
current conditions in Cambodia of growing violence and political
turmoil and Ven's recent marriage to Hin, a former FUNCINPEC member
who is a political asylee in the United States. They argued that
Ven’s marriage to Hin will increase the potential of violence
against Ven and Kim if they return to Cambodia.
Petitioners also argued that the BIA committed legal
error when it relied on Matter of Coelho, 20 I&N Dec. 464 (BIA
1992), and 8 CFR § 1003.2(c)(1), in determining the evidentiary
burden that the petitioners must meet in their motion to reopen.
In its February 17, 2004 decision denying the motion to
reconsider its decision not to reopen the case, the BIA held that
"[w]e find that none of the [petitioners'] contentions in their
motion to reconsider reveals a factual or legal aspect of this case
that was improperly overlooked, or presents a new argument which
persuades us to alter our prior decision [denying the motion to
reopen]."
-7-
This decision was not an abuse of discretion. The BIA's
order denying the motion to reopen did address the country
condition information submitted by Ven and the allegations she made
in her motion of changed circumstances. The BIA decision not to
reopen stated, "[b]y means of the current motion and the
accompanying documents, the [petitioners] have not satisfied the
heavy evidentiary burden relevant to reopening." The BIA also
noted it could not grant Ven’s claim of derivative asylee status
because neither the BIA nor the IJ had jurisdiction over this
claim.
Further, the BIA did not commit legal error by relying on
Matter of Coelho for the substantive requirements of a motion to
reopen. Matter of Coelho specifically states that "a party seeking
reopening bears a 'heavy burden.'" Matter of Coelho, 20 I&N Dec.
at 472 (citing Abudu, 485 U.S. at 110). This heavier burden is in
accord with Supreme Court cases noting that motions for reopening
or reconsideration of final decisions made in immigration
proceedings are disfavored. INS v. Doherty, 502 U.S. 314, 323
(1992); Abudu, 485 U.S. at 107. The BIA also appropriately cited
8 C.F.R. § 1003.2(c)(1). Section 1003.2(c)(1) guides the BIA's
discretion in granting a motion to reopen. It is this section that
is relevant, not the ones cited by the petitioners.1
1
The petitioners argue that 8 C.F.R. §§ 1003.2(c)(3)(ii),
1003.23(b)(4)(iii), and 208.12(b)(1) govern in this situation.
These provisions respectively deal with exceptions to the time
-8-
We affirm the BIA's denial of the motion to reconsider
because it was not made "without a 'rational explanation, [it did
not] inexplicably depart[] from established policies, or rest[] on
an impermissible basis.'" Zhang, 348 F.3d at 293 (quoting
Nascimento, 274 F.3d at 28).
IV.
Accordingly, the petitions for review are denied.
limitation set forth in earlier provisions of the regulation,
exceptions to filing deadlines in a reopening or reconsideration
before the Immigration Court, and the original burden of proof
faced by aliens in applying for asylum.
-9-