Mohtashemi v. Ashcroft , 95 F. App'x 298 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MEHRAN MOHTASHEMI aka Monir
Misaghi,
No. 03-9563
Petitioner, (Board of Immigration Appeals)
v. (D.C. No. A77-645-008)
JOHN ASHCROFT,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE , McKAY , and HARTZ , Circuit Judges.
Petitioner Mehran Mohtashemi 1 appeals the November 20, 2002, decision
by the Board of Immigration Appeals (BIA) (1) affirming the decision by an
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
Mr. Mohtashemi’s brief before this court and his December 20, 2002,
motion to reconsider before the BIA identify him as Mehran Motashamipour. At
all other times during these proceedings, he has been identified as Mehran
Mohtashemi.
Immigration Judge (IJ) denying his application for asylum, restriction on
removal, 2 and protection under the Convention against Torture; and (2) denying
his motion to remand to the IJ for consideration of his religious conversion. He
also appeals the BIA’s April 2003 denial of his motion to reconsider its
November 20, 2002, decision. We hold that (1) this court lacks jurisdiction to
hear his appeal of the November 20, 2002, decision, and (2) the BIA did not
abuse its discretion in denying his motion to reconsider.
I. BACKGROUND
Petitioner is a native and citizen of Iran who sought admission to the
United States at Chicago O’Hare International Airport on November 1, 1999,
when he was 14 years old. He was carrying a false passport. Petitioner applied
for asylum, restriction on removal, and protection under the Convention against
Torture, stating that if returned to Iran, he would be persecuted because of his
father’s job with the Iranian government.
At a hearing on August 30, 2000, the IJ denied Petitioner’s applications,
finding no evidence that he would be persecuted if returned to Iran. Petitioner
appealed the ruling to the BIA in September 2000; and on May 26, 2001, he
2
“Restriction on removal” was referred to as “withholding of removal”
before amendments to the INA made by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. Although both parties and the IJ have used the term “withholding of
removal,” we will use the newer term.
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requested the BIA to reopen his case and remand for a renewed asylum
application based on his recent conversion to Christianity. He submitted no
evidence of his conversion other than his own affidavit.
On November 20, 2002, the BIA issued an order (1) dismissing the appeal
of the IJ’s decision denying relief and (2) denying Petitioner’s motion to reopen
and remand his case. The BIA concluded that “[t]he evidence provided in support
of [Petitioner’s] motion does not persuade us that it [would] be worthwhile to
develop this issue further at a plenary hearing on reopening.” R. 46.
On December 20, 2002, Petitioner filed with the BIA a motion to
reconsider its November 20, 2002, decision, alleging that his father had been
granted asylum in this country and that he was eligible for derivative asylum. He
also attached documents supporting his claim of a conversion to Christianity: (1)
a certificate of baptism dated January 14, 2001; (2) a confirming letter from the
minister; and (3) a statement by his father. On April 30, 2003, the BIA denied the
motion. It concluded that the motion “does not present any additional arguments,
changes in law, or aspects of the case that were overlooked that would warrant
reconsideration of our previous decision.” R. 2. On May 30, 2003, Petitioner
filed a petition for review.
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II. DISCUSSION
A. Jurisdiction to Review Merits
In his brief to this court, Petitioner asks us to consider the merits of the
BIA’s November 20, 2002, denial of his applications for asylum, restriction on
removal, and protection under the Convention against Torture, as well as the
BIA’s denial of his motion to reopen proceedings. Under 8 U.S.C. § 1252(b)(1),
“The petition for review [of an order of removal] must be filed not later than 30
days after the date of the final order of removal.” A failure to file a timely
petition for review of the BIA’s decisions deprives us of jurisdiction. Stone v.
INS, 514 U.S. 386, 406 (1995); see also Nahatchevska v. Ashcroft, 317 F.3d
1226, 1227 (10th Cir. 2003) (holding § 1252(b)(1)’s 30-day time period to
petition for review to be jurisdictional under Stone).
The BIA’s decision became final, and the 30-day review period began
running, on November 20, 2002. See 8 C.F.R. § 1241.31 (order of deportation
becomes final upon dismissal of appeal by BIA); Belay-Gebru v. INS, 327 F.3d
998, 1000 (10th Cir. 2003) (applying § 1252(b)(1)’s predecessor, 8 U.S.C.
§ 1105a, in holding that 30-day limitations period began to run on date of BIA’s
order, despite filing of motion to reconsider); see also Onwuneme v. INS, 67 F.3d
273, 274 (10th Cir. 1995) (finding jurisdiction to review denial of motion to
reopen because denial of motion constitutes final order of deportation). Petitioner
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did not file his petition for review until May 30, 2003, well beyond the 30-day
review period. Thus, we lack jurisdiction to review the merits of the BIA’s
November 20, 2002, order, including both the affirmance of the IJ and the denial
of the motion to reopen.
B. Review of Denial of Motion to Reconsider
Because Petitioner filed his petition for review with this court within 30
days of the BIA’s denial of Petitioner’s motion to reconsider, we have jurisdiction
to review that order. We review a denial of a motion to reconsider for an abuse
of discretion. See Belay-Gebru, 327 F.3d at 1000 & n.5. We hold that the BIA
did not abuse its discretion in denying the motion.
Petitioner moved the BIA to reconsider its decision so that he could pursue
derivative asylum under INA § 208(b)(3), codified at 8 U.S.C. § 1158(b)(3),
based on his father’s recent grant of asylum in this country. Derivative asylum
under § 1158(b)(3), however, is discretionary. “A spouse or child . . . of an alien
who is granted asylum . . . may . . . be granted the same status . . . .” 8 U.S.C.
§ 1158(b)(3)(A) (emphasis added). We therefore have no basis for overturning
the BIA’s denial.
Petitioner argues before this court that he is entitled to mandatory
derivative status under 8 C.F.R. 207.7 because his father was granted refugee
status in addition to asylum. But Petitioner never raised this argument to the BIA
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in his motion for reconsideration. Thus, we will not consider it on appeal from
the denial of that motion.
As for Petitioner’s additional evidence concerning his conversion to
Christianity, the BIA did not abuse its discretion in refusing to consider new
evidence when there was no reason to believe it could not have been produced in
support of Petitioner’s initial motion for remand. Cf. Fed. R. Civ. P. 60(b)(2)
(restricting relief from judgment on ground of newly discovered evidence to cases
in which evidence could not have been discovered by due diligence in time for
motion for new trial).
III. CONCLUSION
We DISMISS Petitioner’s appeal of the BIA’s order of November 20, 2002,
and AFFIRM the BIA’s order of April 30, 2003.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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