Pinov v. Atty Gen USA , 182 F. App'x 140 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-5-2006
Pinov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3586
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DPS-213 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3586
________________
AKHSARBEK PINOV;
RIMA PINOVA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency Nos. A78 498 169; A78 498 168)
Immigration Judge: Honorable Eugene Pugliese
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
May 4, 2006
BEFORE: FUENTES, VAN ANTWERPEN and *ROTH, CIRCUIT JUDGES
(Filed June 5, 2006 )
_______________________
OPINION
_______________________
*Judge Roth assumed senior status on May 31, 2006.
PER CURIAM
Akhsarbek Pinov and his wife Rima Pinova, natives and citizens of Russia,
petition for review of a final order of the Board of Immigration Appeals. On the
government’s motion, we will summarily deny the petition for review.
The petitioners were found removable by an Immigration Judge (“IJ”) for having
overstayed their admission period. See INA § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)].
They applied for asylum, withholding of removal and protection under the United Nations
Convention Against Torture, but the IJ denied relief. The petitioners, through counsel,
sought review by the Board of Immigration Appeals (“BIA”) and, after one extension,
were ordered to submit a brief by September 6, 2002. No brief was received, however,
and the BIA dismissed the appeal on March 5, 2003. See 8 C.F.R. § 1003.1(d)(2)(i)(E).
Represented by new counsel, the petitioners filed a motion for reconsideration of
the BIA’s summary dismissal. The BIA denied the motion on June 9, 2003. Undeterred,
the petitioners filed another motion for reconsideration, which the BIA denied on July 29,
2003, finding that it was numerically barred. See 8 C.F.R. § 1003.2(b)(2). The
petitioners timely filed a petition for review. In April 2006, after the petitioners filed
their opening brief, the government moved to summarily deny the petition for review.
See I.O.P. 10.6.
We have jurisdiction to review the Board’s denial of the petitioners’ motion for
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reconsideration. See, e.g., Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986). The
scope of our review is quite limited, however. See INS v. Doherty, 502 U.S. 314, 323
(1992). We review the denial of a motion for reconsideration for abuse of discretion
only. Nocon, 789 F.2d at 1033; see also Doherty, 502 U.S. at 323 (noting the “broad”
deference due the BIA’s decision).
Significantly, in this proceeding, we can review only the BIA’s July 29, 2003
denial of reconsideration; our review does not extend to (i) the IJ’s original order denying
relief, (ii) the BIA’s March 5, 2003, summary dismissal of the petitioners’ appeal, or (iii)
the BIA’s June 9, 2003, denial of reconsideration. See Stone v. INS, 514 U.S. 386, 405
(1995) (holding that review of an original removal decision and a subsequent removal
order are distinct); see also McAllister v. Attorney General, -- F.3d --, 2006 WL 903203,
at *3 (3d Cir. Apr. 10, 2006) (recognizing that a petition for review must be filed within
30 days of a final order of removal). Consequently, we may not examine the sole
argument presented in the petitioners’ counseled brief, namely, that the IJ erred in
“[r]efusing to recognize that [they] established both past persecution and well-founded
fear of future persecution . . . on account of [their] membership in a particular social
group.” Because the petitioners’ brief to this Court makes no mention of the BIA’s
decision that their second motion for reconsideration was numerically barred, they have
waived appellate review of that issue. See, e.g., In re Surrick, 338 F.3d 224, 237 (3d Cir.
2003).
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For the foregoing reasons, we conclude that the petitioners’ appeal presents us
with no “substantial question.” I.O.P. 10.6. Accordingly, we will grant the government’s
motion and summarily deny the petition for review.
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