Emruloski v. Ashcroft

44 F. App'x 538
CourtCourt of Appeals for the Third Circuit
DecidedAugust 1, 2002
DocketNo. 01-4083
StatusPublished

This text of 44 F. App'x 538 (Emruloski v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emruloski v. Ashcroft, 44 F. App'x 538 (3d Cir. 2002).

Opinion

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Petitioner, Nazif Emruloski seeks review of the dismissal by the United States Board of Immigration Appeals (“the Board”) of his motion to reopen proceedings. The action commenced when Emruloski, a native and citizen of Macedonia, applied then withdrew his application for asylum and withholding of removal. Almost two years later, he filed a motion to reopen seeking withholding of removal under the Convention Against Torture. The Immigration Judge denied relief and was later affirmed by the Board. The decision to deny was based on Emruloski’s motion being filed out of time and his failure to establish a prima facie case under the Convention Against Torture. We will deny Petitioner’s petition and affirm the Board’s dismissal. We have jurisdiction to review the Board’s dismissal of Petitioner’s motion to reopen. Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir.2002) citing Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000) (holding that the Board’s denial of a motion to reopen is renewable by the federal court of appeals).

Emruloski alleges that he fled Macedonia when he was being recruited to join the Serbian Army. He refused to join the army because he did not want to be ordered to kill his fellow countrymen. As a result of his refusal to join, he alleges that he was the subject of constant harassment and abuse, leaving him no other choice but to flee the country out of fear of its continuing unrest. He entered the United States on September 20,1993 with authorization to remain until December 19, 1993. On February 27, 1997 while still in the United States, Emruloski filed an application for asylum and withholding of removal. He subsequently withdrew that application on July 7, 1998, during proceedings, and was granted voluntary departure. He promised to depart the United States on or before November 4,1998.

On February 24, 2000, Emruloski, still residing in the United States, received a “Bag and Baggage” letter from the Immigration and Naturalization Service. He subsequently filed a motion to reopen proceedings on March 15, 2000, requesting a withholding of removal under the Convention Against Torture. The Immigration Judge denied the motion holding that it was untimely filed. She further held that Emruloski did not provide any evidence that would prove unrest, forced recruitment or combat in Macedonia. The timing of petitioner’s motion in conjunction with the reception of the “Bag and Baggage” letter led the Immigration Judge to conclude that the motion’s filing was “merely a dilatory tactic.” A.R. 51.

On appeal, the Board dismissed the petition and affirmed the Immigration Judge’s denial of relief. The Board held that the motion was filed out of time and Emruloski did not meet the evidentiary burden of showing that it is more likely than not that [540]*540he would be tortured if removed to Macedonia for the purposes of relief under the Convention Against Torture. Emruloski submitted additional evidence on his appeal, which the Board could not consider but noted that the new evidence was insufficient to warrant reopening the proceedings.

We review the Board’s decision to dismiss Emruloski’s appeal for an abuse of discretion and review the Board’s factual findings for substantial evidence. Sevoi-an, 290 F.3d at 174 (holding that when the Board or an Immigration Judge denies reopening on prima facie case grounds both substantial evidence and abuse of discretion standards should apply). See also Kamalthas v. INS, 251 F.3d 1279, 1281 (9th Cir.2001); Najjar v. Ashcroft, 257 F.3d 1262, 1304 (11th Cir.2001) (applying both substantial evidence and abuse of discretion standards). Under an abuse of discretion standard, the Board’s decision should only be reversed if it is arbitrary, irrational or contrary to law. Sevoian 291 F.3d at 174 quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994). Under the deferential substantial evidence standard, the Board will only be reversed if factual evidence not only supports but compels a contrary conclusion to the Board’s decision. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Petitioner seeks review of his motion to reopen proceedings for withholding of removal under the Convention Against Torture. The relief sought falls under Article 18 of the Convention because of the date on which the final order for removal was issued.

An alien under a final order of deportation, exclusion, or removal that became final prior to March 22, 1999 may move to reopen proceedings for the sole purpose of seeking protection under [withholding of removal of the Convention Against Torture]. Such motions shall be governed by §§ 3.23 and 3.2 of this chapter, except that the time and numerical limitations on motions to reopen shall not apply ... The motion to reopen shall not be granted unless: (i) The motion is filed within June 21, 1999; and (ii) The evidence sought to be offered establishes a prima facie case that the applicant’s removal must be withheld or deferred [when it is more likely than not that he or she would be tortured if removed to the proposed country of removal], 8 C.F.R. § 208.18(b)(2).

Emruloski’s final order of removal was issued on July 7, 1998.1 He filed his motion to reopen on March 15, 2000, after the June 21,1999 deadline, with no explanation or reason for his tardiness. Additionally important is the Immigration Judge’s determination that the motion to reopen proceedings was a dilatory tactic. The Judge’s conclusion was based on the facts that Petitioner did not contact his lawyer until after he received his “Bag and Baggage” letter, which was over a year past his voluntary departure deadline. After the passing of the legislation effecting the Convention Against Torture, Petitioner had three months in which he could have brought his motion to reopen for a hearing on the merits. Instead of exercising this option, Petitioner’s actions point to the possibility that he attempted to evade the [541]*541system until it could no longer be avoided. Under the regulations, Emruloski’s motion to reopen was untimely. The Board appropriately affirmed the Immigration Judge’s denial of relief. Hence, neither the Board nor the Immigration Judge acted arbitrarily, irrationally, or contrary to law in dismissing Petitioner’s motion to reopen on the basis of untimeliness.

Petitioner argues that the Board, in Matter of J-J-, 21 I & N Dec. 976,1997 WL 434418 (BIA 1997), held that an exception to the regulatory 90 day filing deadline exists for motions for reopening related to changed circumstances in the country of nationality. In Matter of J-J-,

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Related

J-E
23 I. & N. Dec. 291 (Board of Immigration Appeals, 2002)
J-J
21 I. & N. Dec. 976 (Board of Immigration Appeals, 1997)

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Bluebook (online)
44 F. App'x 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emruloski-v-ashcroft-ca3-2002.