Ordonez-Santay v. Lynch
691 F. App'x 645
| 1st Cir. | 2016Background
- Petitioner Luis Estuardo Ordonez-Santay, a Guatemalan national, was charged as removable under INA § 212(a)(6)(A)(i) after entering the U.S. in 2008.
- Ordonez applied for asylum, withholding of removal, and CAT protection, claiming he had been forced to join a local vigilante group in Guatemala and feared future harm if returned.
- The Immigration Judge pretermitted the asylum claim and denied withholding and CAT relief; the Board of Immigration Appeals (BIA) summarily affirmed.
- Ordonez did not timely seek judicial review of the removal order; instead he filed a motion to reconsider with the BIA, which the BIA denied for failing to identify any material error of law or fact.
- Ordonez then petitioned this Court to review the BIA’s denial of his motion to reconsider; the Court limited review to the denial of the motion to reconsider (not the original removal order).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying the motion to reconsider | BIA erred and should revisit the prior denial (Ordonez emphasizes merits of withholding claim) | Motion failed to identify any material legal or factual error; merely rehashes previously rejected arguments | No abuse of discretion; denial affirmed |
| Whether a motion to reconsider may be used to relitigate merits of removal order | Seeks reconsideration effectively raising merits (withholding more-likely-than-not fear of persecution) | A motion to reconsider is not a vehicle for a belated appeal of the removal order | Court rejects use of reconsideration as substitute for judicial review; motion deficient |
Key Cases Cited
- Liu v. Mukasey, 553 F.3d 37 (1st Cir. 2009) (BIA motion-to-reconsider standards and scope of appellate review)
- Abdullah v. Gonzales, 461 F.3d 92 (1st Cir. 2006) (procedural posture regarding BIA orders)
- Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006) (standard of review for BIA motions)
- Zhang v. INS, 348 F.3d 289 (1st Cir. 2003) (abuse-of-discretion standard for BIA decisions)
- Nascimento v. INS, 274 F.3d 26 (1st Cir. 2001) (limits on overturning BIA discretion)
- Mana v. Gonzales, [citation="128 F. App'x 167"] (1st Cir. 2005) (motion to reconsider cannot serve as belated appeal)
- Ahmed v. Ashcroft, 388 F.3d 247 (7th Cir. 2004) (reiterating that rehashed arguments do not warrant reconsideration)