Pena-Muriel v. Gonzales

Oct 24, 2007

05-1937

Versions:510 F.3d 350

2007 U.S. App. LEXIS 29210

2007 WL 4385792

ORDER OF COURT

In this petition for panel rehearing, petitioner argues for the first time that the text of 8 U.S.C. § 1229a(c)(7)(A), a provision added to the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996, which states that “[a]n alien may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv),” unambiguously provides an alien the right file a motion to reopen either from within the United States or abroad.

When this case was presented to the panel, petitioner presented only one statutory argument, asserting that Congress’s deletion of 8 U.S.C. § 1105a(c) when passing IIRIRA removed the statutory foundation for the regulation barring motions to reopen from being filed outside of the United States, 8 C.F.R. § 1003.23(b)(1). We rejected this argument. Not having been asked to do so, we did not decide whether 8 C.F.R. § 1003.23(b)(1) conflicts with 8 U.S.C. § 1229a(c)(7). We will not address that issue now on rehearing. See American Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, 1264 (1st Cir.1993) (“[A] party may not raise new and additional matters for the first time in a petition for rehearing.”).

The petition for panel rehearing is denied.

Before BOUDIN, Chief Judge, TORRUELLA, LYNCH, LIPEZ and HOWARD, Circuit Judges.

ORDER OF COURT

The petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing en banc be denied.