Sinistaj, Marija v. Ashcroft

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 7, 2004
• Docket: 02-4028
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Sinistaj, et al. v. Nos. 02-4026/4027/4028 ELECTRONIC CITATION: 2004 FED App. 0210P (6th Cir.) Ashcroft, et al. File Name: 04a0210p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Richard A. Kulics, IMMIGRATION LAW _________________ CENTER, Birmingham, Michigan, for Petitioners. Norah Ascoli Schwarz, UNITED STATES DEPARTMENT OF DJON SINISTAJ (02-4026); X JUSTICE, Washington, D.C., for Respondents. ON BRIEF: DRITA SINISTAJ (02-4027); - Richard A. Kulics, IMMIGRATION LAW CENTER, MARIJA SINISTAJ (02-4028), - Birmingham, Michigan, for Petitioners. Norah Ascoli - Nos. 02-4026/ Schwarz, Linda S. Wendtland, UNITED STATES Petitioners, - 4027/4028 DEPARTMENT OF JUSTICE, Washington, D.C., for > Respondents. , v. - _________________ - JOHN ASHCROFT , Attorney - OPINION General; IMMIGRATION AND - _________________ NATURALIZATION SERVICE, - Respondents. - BOYCE F. MARTIN, JR., Circuit Judge. Djon Sinistaj - petitions for review of a Board of Immigration Appeals N decision denying his motion “to reopen or reconsider” a prior On Petition for Review of an Order of the decision by the Board. Mr. Sinistaj’s wife, Drita, and their Board of Immigration Appeals. daughter, Marija, are also petitioners in this case, but their Nos. A72 167 971; A72 167 972; A72 167 973. claims are entirely derivative of those of Mr. Sinistaj. For the reasons that follow, the petition for review is DENIED. Argued: April 27, 2004 I. Decided and Filed: July 7, 2004 Djon, Drita and Marija Sinistaj are ethnic Albanians who Before: MARTIN and ROGERS, Circuit Judges; BELL, are citizens of Montenegro, a region in what was formerly the Chief District Judge.* nation of Yugoslavia. The Sinistaj family entered the United States without inspection on March 31, 1994, and Mr. Sinistaj eventually filed an application for asylum. Two individuals allegedly “assisted” in the preparation of this application: Mr. Prenk Camaj, who apparently also goes by the name “Father * Frank,” and Ms. Elizabeth Muntean. According to Mr. The Honorable Robert Holmes Bell, Chief United States District Sinistaj, Mr. Camaj and Ms. Muntean fraudulently “held Judge for the Western District of Michigan, sitting by designation.

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themselves out as being qualified to represent aliens before Mr. Sinistaj appealed the immigration judge’s order, the [Immigration and Naturalization Service] concerning arguing that the problems with his credibility were due to asylum and deportation matters” and erroneously advised him faulty translation by the government translator. The Board of to submit false and inconsistent information to the Service, Immigration Appeals dismissed the appeal, and that dismissal which he did. was not appealed. On September 21, 1998, however, Mr. Sinistaj filed with the Board a “motion to reopen or Mr. Sinistaj appeared before an asylum officer on reconsider” the Board’s prior decision. While the substance August 31, 1995. He was notified the following month that of that motion dealt primarily with the issue of reopening, it his application had not been granted and that his case was also stated that if “the Board finds that reopening in this case being referred to an immigration judge. Deportation is inappropriate because the evidence should or could have proceedings commenced soon afterward. On May 16, 1996, been presented at the time of hearing, or that it was already Mr. Sinistaj appeared before an immigration judge, part of the record, then we respectfully request that the represented by Attorney Carl Weidman. He conceded [B]oard reconsider its decision to deny respondents [sic] deportability but again requested asylum, as well as appeal for the reasons stated and under the authority cited in withholding of deportation and voluntary departure. On July support of the Motion to Reopen.” The purported basis for 3, 1996, with the assistance of Attorney Weideman, Mr. reopening the case was that the “fraudulent” conduct of the Sinistaj filed a renewed application for asylum. The “unscrupulous individuals”—i.e., Mr. Camaj and Ms. immigration judge held a hearing that featured primarily Mr. Muntean—caused Mr. Sinistaj to submit false and misleading Sinistaj’s own testimony. His wife also testified, but the information to the Service, which served to undermine his immigration judge noted that Mr. Sinistaj interjected several credibility in the eyes of the immigration judge and thereby times in an apparent attempt to channel or direct her prevented him from obtaining a fair hearing. The testimony—particularly after she began to contradict his Immigration and Naturalization Service opposed the motion. testimony concerning an incident in which he claims they both were physically and verbally assaulted. On August 19, 2002, the Board issued a written per curiam order denying Mr. Sinistaj’s motion. The substance of the On March 3, 1997, at the conclusion of the hearing, the Board’s order focused only upon the issue of reopening, and immigration judge rendered an oral decision denying Mr. did not explicitly analyze the issue of reconsideration. With Sinistaj’s applications for asylum and withholding of respect to the request for reopening, the order explained that deportation. The immigration judge found that his testimony such a request may be granted only when based upon material was not credible and that his claims of persecution were evidence that was unavailable at the prior hearing. The Board unsupported by the evidence. The immigration judge granted concluded that because “[t]he assertions made by the voluntary departure as to Mr. Sinistaj’s wife and daughter, but respondents were previously available” and the respondents held that Mr. Sinistaj was statutorily ineligible for such relief “had ample opportunity to pursue their claims against their because he lied under oath to procure an immigration former representatives on direct appeal,” reopening was benefit—and that, in any event, voluntary departure would be “precluded.” This timely appeal followed. denied in the exercise of the immigration judge’s discretion because of his false testimony and repeated attempts to direct his wife’s testimony. Nos. 02-4026/4027/4028 Sinistaj, et al. v. 5 6 Sinistaj, et al. v. Nos. 02-4026/4027/4028 Ashcroft, et al. Ashcroft, et al.

II. analyzing the issue of reconsideration. We find this argument unpersuasive as well. A. Mr. Sinistaj filed one motion, styled a motion “to reopen or Mr. Sinistaj first contests the Board’s denial of his request reconsider,” and the Board denied that motion. The fact that for reopening, which we review for abuse of discretion. INS the Board did not explicitly analyze the issue of v. Doherty, 502 U.S. 314, 322-23 (1992). “The decision to reconsideration is of no consequence – at least in this case, grant or deny a motion to reopen or reconsider is within the where Mr. Sinistaj failed to comply with the requirements set discretion of the Board,” and the Board may “deny a motion forth in the applicable regulations and, therefore, was not to reopen even if the party moving has made out a prima facie entitled to reconsideration in any event. case for relief.” 8 C.F.R. § 1003.2(a). “A motion to reopen proceedings shall not be granted” unless it is based upon Pursuant to 8 C.F.R. § 1003.2(b), a motion for evidence that “is material and was not available and could not reconsideration of a decision by the Board must “state the have been discovered or presented at the former hearing . . . .” reasons for the motion by specifying the errors of fact or law Id. at § 1003.2(c)(1). in the prior Board decision,” and must be “supported by pertinent authority.” The reconsideration section of Mr. Mr. Sinistaj does not challenge the Board’s determination Sinistaj’s motion merely stated that “[i]f the Board finds that that the evidence concerning Mr. Camaj and Ms. Muntean, reopening in this case is inappropriate because the evidence which formed the basis of the request for reopening, was should or could have been presented at the time of hearing, or available at the time of the former hearing. For that reason that it was already part of the record, then we respectfully alone, the requirements for reopening have not been met. Id. request that the [B]oard reconsider its decision to deny Thus, Mr. Sinistaj has failed to demonstrate entitlement to the respondents [sic] appeal for the reasons stated and under the remedy of reopening, and the Board committed no abuse of authority cited in support of the Motion to Reopen.” But discretion in so finding.1 nowhere in the motion—in the reopening section or otherwise—was there any identification of “errors of fact or B. law in the prior Board decision” that would warrant reconsideration. Id. The motion expounded upon the Mr. Sinistaj also challenges the fact that the Board denied problem of “unscrupulous individuals” “defrauding his motion “to reopen or reconsider” without explicitly immigrants” and asserted that Mr. Camaj and Ms. Muntean were responsible for Mr. Sinistaj’s submission of false and inconsistent information to the Service, but it identified no factual or legal error committed by the Board. Indeed, the 1 motion even conceded that the identified problems were “not Mr. Sinistaj argues that we should apply the do ctrine of equitab le tolling to excuse his delay in presenting his argument concerning Mr. due to the conduct of the Immigration Judge . . . .” Camaj and M s. Muntea n, though he co ncedes that this Court has never applied the do ctrine in this type of situatio n. M r. Sinistaj has failed to Moreover, the only legal authority cited in the motion was develop this argument in any coherent manner, and we can discern no a string-cite of three cases that purportedly deal with notions way in which the doctrine of equitable tolling co uld ap ply to entitle him to reo pening of his case. of “due process” and “fundamental fairness,” but were not Nos. 02-4026/4027/4028 Sinistaj, et al. v. 7 Ashcroft, et al.

cited for any proposition related to reconsideration and do not reveal any error committed by the Board in this case. Thus, the cases cited do not constitute “pertinent authority” within the meaning of 8 C.F.R. § 1003.2(b). In short, because Mr. Sinistaj failed to meet the requirements for reconsideration, the Board committed no abuse of discretion in denying his motion. See, e.g., Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (holding that because petitioners’ motion for reconsideration failed to “state the reasons for reconsideration” or cite “pertinent case precedent,” “the Board was justified in denying the motion on this ground and cannot be said to have abused its discretion.”). For these reasons, the petition for review of the Board’s decision is DENIED.