Case Information
*2 Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Petitions denied by unpublished per curiam opinion.
Rachel S. Ullman, YANG & ULLMAN, P.C., Silver Spring, Maryland, for Petitioner. Gregory G. Katsas, Assistant Attorney General, Michelle Gorden Latour, Assistant Director, Matt A. Crapo, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. *3
PER CURIAM:
In these consolidated appeals, Margarita Marcellana Arcega, a native and citizen of the Philippines, petitions for review of orders of the Board of Immigration Appeals (“Board”) denying her motions to reopen and to reconsider. We deny the petitions for review.
An alien may file one motion to reopen within ninety days of the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2008). A motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1) (2008). It “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.” Id.
We review the denial of a motion to reopen for abuse
of discretion. 8 C.F.R. § 1003.2(a) (2008); INS v. Doherty , 502
U.S. 314, 323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744
(4th Cir. 2006). A denial of a motion to reopen must be
reviewed with extreme deference, since immigration statutes do
not contemplate reopening and the applicable regulations
disfavor such motions. M.A. v. INS,
It is uncontroverted that the motion to reopen was
untimely as it was filed more than ninety days after the Board
dismissed Arcega’s appeal. We find the Board did not abuse its
discretion in finding that the ninety day period should not be
equitably tolled. The evidence before the Board, including the
letters sent by Arcega’s counsel during the course of the appeal
to the Board and immediately after the dismissal order was
entered, does not compel a different result. We further find we
are without jurisdiction to review the Board’s discretionary
decision denying relief under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III)
(2006). See 8 U.S.C. § 1252(a)(2)(B)(ii) (2006); see, e.g.,
Okpa v. INS , 266 F.3d 313, 317 (4th Cir. 2001). The Board’s
findings that Arcega failed to show extraordinary circumstances
as a result of her counsel’s ineffectiveness or that her removal
would cause an extreme hardship on her children were issues of
fact and not law. See Zhu v. Gonzales, 493 F.3d 588, 595-96
(5th Cir. 2007); Ignatova v. Gonzales, 430 F.3d 1209, 1213 (8th
Cir. 2005). We further find we are without jurisdiction to
*5
review the Board’s decision not to sua sponte reopen the
proceedings. See, e.g., Tamenut v. Mukasey,
We review the Board’s decision to deny the motion to
reconsider for abuse of discretion. INS v. Doherty, 502 U.S.
314, 323-24 (1992); see 8 C.F.R. § 1003.2(a) (2008). A motion
for reconsideration asserts that the Board made an error in its
earlier decision, Turri v. INS, 997 F.2d 1306, 1311 n.4 (10th
Cir. 1993), and requires the movant to specify the error of fact
or law in the prior Board decision. 8 C.F.R. § 1003.2(b)(1)
(2008); Matter of Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991)
(noting that a motion to reconsider questions a decision for
alleged errors in appraising the facts and the law). The burden
is on the movant to establish that reconsideration is warranted.
INS v. Abudu,
*6 We find the Board did not abuse its discretion in denying the motion to reconsider. Insofar as the Board may have made a factual error concerning whether Arcega had notice of the Board’s order dismissing her appeal, we find there was sufficient evidence in the record supporting the Board’s decision that Arcega did not establish she did not have notice as a result of counsel’s ineffectiveness. Arcega failed to show how the Board erred as a matter of law or fact in reaching that decision.
Accordingly, we deny the petitions for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITIONS DENIED