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Osorno v. Gonzales

United States Court of Appeals, First Circuit
Mar 10, 2006
No. 05-1279 (1st Cir. Mar. 10, 2006)

Opinion

No. 05-1279.

March 10, 2006.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Roxana V. Muro and Desmond P. FitzGerald on brief for petitioner.

Karen L. Goodwin, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, on brief for respondent.

Before Lynch, Circuit Judge, Bowman, Senior Circuit Judge, and Howard, Circuit Judge.

Of the Eighth Circuit, sitting by designation.


Diego Andres Osorno petitions for review of a February 8, 2005, order of the Board of Immigration Appeals (BIA). In that order, the BIA denied Osorno's motion to reconsider an earlier BIA order affirming the denial by an immigration judge (IJ) of Osorno's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because the BIA did not abuse its discretion in denying Osorno's motion to reconsider, we deny the petition for review.

Osorno is a twenty-eight-year-old native and citizen of Colombia. On October 27, 1999, he was admitted to the United States as a non-immigrant visitor with authorization to remain in the country until November 26, 1999. Osorno overstayed his visa and in November 2000, applied for asylum, withholding of removal, and relief under the CAT, claiming past persecution and a fear of future persecution in Colombia based on his political opinion and his status as a large landowner. On August 28, 2001, an asylum officer of the Immigration and Naturalization Service (INS) interviewed Osorno and found his testimony to be inconsistent, lacking in detail, and not credible. The asylum officer concluded that Osorno was not eligible for asylum and referred the matter to an IJ. The INS placed Osorno in removal proceedings on September 21, 2001, by issuing a Notice to Appear that charged Osorno with remaining in the United States for a period longer than authorized and sought to have him removed under 8 U.S.C. § 1227(a)(1)(B) (2000).

On March 1, 2003, the Department of Homeland Security assumed the relevant functions of the INS, and the INS ceased to exist. Homeland Security Act of 2002, Pub.L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)).

On July 28, 2003, the IJ found Osorno removable as charged and denied Osorno's application for asylum, withholding of removal, and relief under the CAT. In his oral decision, the IJ reviewed much of the record, including the asylum officer's assessment, and concluded that a "reasonable person similarly situated" to Osorno "would not fear persecution or have a well-founded fear of persecution" based on the evidence presented. Admin. Rec. at 104. The IJ agreed with the asylum officer's finding that Osorno's testimony lacked credibility. Id. at 103. The IJ also agreed with the asylum officer that Osorno gave "false testimony to American authorities" to obtain his visa and that he had not adequately explained why it was impossible for him to relocate within Colombia as had two of his brothers. Id. at 107, 104.

The BIA affirmed and adopted the IJ's decision on November 1, 2004, dismissing Osorno's appeal after concluding that Osorno had not presented sufficient evidence to establish past persecution on account of a protected ground. The BIA also concluded that Osorno had not attempted "to relocate within Colombia, despite evidence that other family members had successfully moved to other areas without further incident." Id. at 17 (November 1, 2004, Order of the BIA). Osorno did not petition for judicial review of this decision, instead filing a motion with the BIA to reconsider its order dismissing his appeal. In his motion for reconsideration, Osorno argued to the BIA that it was error to rely on the IJ's credibility determinations in affirming the denial of relief from deportation. Specifically, Osorno contended that the BIA erred in affirming the IJ's decision to deny asylum, withholding of removal, and relief under the CAT because the IJ "arbitrarily and capriciously" found Osorno's testimony not credible and "arbitrarily denied" his application "by failing to include any legal analysis." Id. at 10 (Respondent's Motion to Reconsider).

On February 8, 2005, the BIA denied Osorno's motion for reconsideration, noting that Osorno had failed to identify a legal or factual error in the November 1 decision dismissing his appeal, and observing that Osorno was improperly attempting to attack the IJ's "adverse credibility finding and his reliance on the asylum officer's report." Id. at 2 (Feb. 8, 2005, Order of the BIA). The BIA also noted that with respect to any claim Osorno was attempting to raise regarding the fairness of the removal proceedings before the IJ, "he has not shown prejudice." Id. Osorno timely filed this petition for judicial review of the BIA's denial of his motion to reconsider.

Osorno argues before this Court that the BIA erred in deferring to the IJ's credibility determinations and that the IJ's antagonistic conduct during the removal hearing deprived him of his due-process rights. These arguments amount to an attempt to attack the BIA's November 1 order dismissing Osorno's appeal of the IJ's adverse ruling on the merits of Osorno's application for relief from deportation. The merits of Osorno's application for relief are not before us, however, because Osorno failed to timely file a petition for judicial review of the BIA's November 1 order dismissing his appeal. Petitions for judicial review from BIA final orders of removal must be filed "not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1) (2000). This time limit is "a strict jurisdictional requirement" for judicial review.Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003). Moreover, the thirty-day period for filing a petition for judicial review continues to run despite a subsequently filed motion to reconsider. Ven v. Ashcroft, 386 F.3d 357, 359-60 (1st Cir. 2004) ("A motion to . . . 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 [a] motion[ ] to . . . reconsider the denial of asylum, withholding of removal, and protection under the CAT."). Because Osorno did not file a petition for judicial review within thirty days of the BIA's November 1, 2004, decision dismissing his appeal of the IJ's order of removal, we lack jurisdiction to review that decision. The only matter over which we have jurisdiction is the BIA's February 8, 2005, denial of Osorno's motion to reconsider.

Osorno even concedes that he "failed to timely appeal the Board's denial of his appeal" of the IJ's ruling on the merits of his application for relief. Brief for Petitioner at 12.

We review the BIA's denial of a motion to reconsider for abuse of discretion. See Ven, 386 F.3d at 360. The BIA abuses its discretion in denying a motion to reconsider only where "the denial was made without a 'rational explanation, inexplicably departed from established policies, or rested on an impermissible basis' (such as race)." Zhang, 348 F.3d at 293 (quoting Nascimento v. INS, 274 F.3d 26, 28 (1st Cir. 2001)).

A motion to reconsider must identify with specificity "the errors of fact or law in the prior [BIA] decision" and must support with "pertinent authority" any such claims of error. 8 C.F.R. § 1003.2(b)(1) (2004). "Under BIA precedent, a party filing a motion to reconsider must present additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked." Asemota v. Gonzales, 420 F.3d 32, 33 (1st Cir. 2005) (citing Matter of Cerna, 20 I. N. Dec. 399, 402-03 n. 2 (BIA 1991)). In other words, a motion to reconsider may not be used to raise new facts, but only to demonstrate that the BIA erred as a matter of law or fact in its original decision. We note, however, that even if the prerequisites for reconsideration are met, the BIA, in its discretion, may deny the motion. Asemota, 420 F.3d at 34 (citing 8 C.F.R. § 1003.2(a)).

In the motion for reconsideration that Osorno filed with the BIA, he merely restates the evidence he presented to the IJ and reiterates that this evidence was sufficient to establish his eligibility for relief from removal. Osorno's motion amounts to nothing more than another attempt to attack the IJ's underlying decision denying Osorno's application for relief. In denying Osorno's motion for reconsideration, the BIA concluded that the motion "lack[ed] merit as it fail[ed] to identify a legal or factual error" in the November 1 order affirming the IJ's denial of relief and dismissing Osorno's appeal. Admin. Rec. at 2 (Nov. 1, 2004, Order of the BIA). Osorno's motion to reconsider did not present additional legal arguments but merely reiterated those made in his earlier appeal to the BIA; it did not identify any change of law; and it did not establish that any argument or aspect of the case was overlooked. There was thus no abuse of discretion in the BIA's denial of the motion to reconsider.

Based on the foregoing, we deny the petition for review of the BIA's order denying the motion to reconsider.


Summaries of

Osorno v. Gonzales

United States Court of Appeals, First Circuit
Mar 10, 2006
No. 05-1279 (1st Cir. Mar. 10, 2006)
Case details for

Osorno v. Gonzales

Case Details

Full title:DIEGO OSORNO, Petitioner, v. ALBERTO GONZALES, Attorney General, Respondent

Court:United States Court of Appeals, First Circuit

Date published: Mar 10, 2006

Citations

No. 05-1279 (1st Cir. Mar. 10, 2006)