Sukhraj Kaur, Petitioner, v. Board of Immigration Appeals, Respondent, 413 F.3d 232 (2d Cir. 2005)

Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for review of a June 20, 2003 order of the Board of Immigration Appeals ("BIA" or "Board") denying petitioner's motion to reopen proceedings in order to submit "new evidence" regarding her asylum claim. In an earlier order, dated December 13, 2002, the BIA affirmed a decision by an immigration judge ("IJ") denying petitioner's application for asylum and withholding of removal, and further denied petitioner relief under the United Nations Convention Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We assume that the parties are familiar with the facts, the procedural history, and the scope of the issues presented on appeal.

As a threshold matter, we note that our review is limited to the BIA's decision not to reopen petitioner's removal proceedings. Petitioner did not timely petition for review of the December 13, 2002 order of the BIA that affirmed the IJ's denial of her underlying asylum application. It is also well-established that the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA's final exclusion or deportation orders, such as the December 13, 2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995). We are therefore "precluded from passing on the merits of the underlying exclusion proceedings," and must confine our review to the denial of petitioner's motion to reopen these proceedings. Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir. 2001).

We review the BIA's denial of a motion to reopen for abuse of discretion. Zhao, 265 F.3d at 92-93. "An abuse of discretion may be found in those circumstances where the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Id. at 93 (internal citations omitted).

Petitioner's appellate brief argues the merits of her underlying asylum claim, but does not suggest any reasons why the BIA might have abused its discretion in denying petitioner's motion to reopen removal proceedings.

In any event, upon review of the record of this case, we conclude that the BIA did not abuse its discretion. The statutory framework governing asylum proceedings "does not provide for motions to reopen or reconsider, and the right to make such motions depends entirely on the administrative regulations." 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 3.05 (2005). BIA regulations, in turn, provide that " [a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c) (1) (2005); see also Zhao, 265 F.3d at 90 (" [A] motion to reopen asks that the proceedings be reopened for new evidence and a new decision, usually after an evidentiary hearing. Such motions must state what new facts would be proven at a hearing and be supported by affidavits or other evidentiary material.") (internal citations omitted). In this case, the BIA's June 20, 2003 order clearly explained that the evidence submitted by petitioner in support of her motion was not "material" because it did not rebut the adverse credibility finding that provided the basis for the IJ's denial of petitioner's underlying asylum application. See Ballenilla-Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir. 1976) (holding that " [i]mplicit" in the requirement that the party seeking reopening of proceedings "state the new facts to be proved at the reopened hearing" is the "the assumption that no such motion will be granted unless the facts alleged would be sufficient, if proved, to change the result"); see also 1 Gordon, Mailman & Yale-Loehr, ante § 3.05 (noting that consideration of a motion to reopen includes "an implicit requirement that the facts alleged would be sufficient, if proved, to change the result").

We have considered all of petitioner's arguments and found each of them to be without merit. Accordingly, the petition is denied and the decision of the Board of Immigration Appeals is affirmed.