Neris-Maria v. Mukasey

Second Circuit

Neris-Maria v. Mukasey

274 F. App'x 69

CourtCourt of Appeals for the Second Circuit

DecidedApril 23, 2008

DocketNo. 07-1957-ag

StatusPublished

This text of 274 F. App'x 69 (Neris-Maria v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neris-Maria v. Mukasey, 274 F. App'x 69 (2d Cir. 2008).

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Opinion

SUMMARY ORDER

Rafael Neris-Maria, a native and citizen of the Dominican Republic, petitions for review of the BIA’s April 23, 2007 order denying Neris-Maria’s motion to reopen. We presume the parties’ familiarity with the facts and procedural history of the case, and arguments on appeal.

[70]*70We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. Kaur v. BIA, 418 F.3d 232, 233 (2d Cir.2005) (per curiam). With certain exceptions not applicable here, a party may file only one motion to reopen, and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered. 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). “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); see also Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006) (per curiam) (looking to the date on which the IJ closed the record as the date before which the evidence must have been unavailable, undiscoverable, or unpresentable). Failure to offer such evidence is, therefore, a proper ground on which the BIA may deny a motion to reopen, as is the movant’s failure to establish a prima facie case for the underlying substantive relief sought. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

Neris-Maria’s final administrative decision was rendered in September 2004. The motion to reopen that is currently under review was not filed until January 2007. Moreover, Neris-Maria had already filed one motion to reopen and one motion for reconsideration. He makes no argument that the time or numerical limitations should be excused in this case based on newly discovered evidence or new eligibility for relief. To the extent he argues that Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) affects his claim for relief, he fails to explain either how Lopez affects his case, or how it would entitle him to previously unavailable relief. Therefore, the BIA did not abuse its discretion in finding that Neris-Maria’s third motion to reopen was both number and time-barred. See 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001).

Finally, this Court lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006) (per cu-riam).

For the foregoing reasons, the petition for review is DENIED.

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SUMMARY ORDER

Rafael Neris-Maria, a native and citizen of the Dominican Republic, petitions for review of the BIA’s April 23, 2007 order denying Neris-Maria’s motion to reopen. We presume the parties’ familiarity with the facts and procedural history of the case, and arguments on appeal.

[70]*70We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. Kaur v. BIA, 418 F.3d 232, 233 (2d Cir.2005) (per curiam). With certain exceptions not applicable here, a party may file only one motion to reopen, and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered. 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). “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); see also Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006) (per curiam) (looking to the date on which the IJ closed the record as the date before which the evidence must have been unavailable, undiscoverable, or unpresentable). Failure to offer such evidence is, therefore, a proper ground on which the BIA may deny a motion to reopen, as is the movant’s failure to establish a prima facie case for the underlying substantive relief sought. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

Neris-Maria’s final administrative decision was rendered in September 2004. The motion to reopen that is currently under review was not filed until January 2007. Moreover, Neris-Maria had already filed one motion to reopen and one motion for reconsideration. He makes no argument that the time or numerical limitations should be excused in this case based on newly discovered evidence or new eligibility for relief. To the extent he argues that Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) affects his claim for relief, he fails to explain either how Lopez affects his case, or how it would entitle him to previously unavailable relief. Therefore, the BIA did not abuse its discretion in finding that Neris-Maria’s third motion to reopen was both number and time-barred. See 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001).

Finally, this Court lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006) (per cu-riam).

For the foregoing reasons, the petition for review is DENIED.

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