Freddie Musangu v. Eric Holder, Jr. , 517 F. App'x 166 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2471
FREDDIE LUBOYA MUSANGU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 21, 2013 Decided: April 4, 2013
Before KING, DAVIS, and DIAZ, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Freddie Luboya Musangu, Petitioner Pro Se. Laura M.L. Maroldy,
Nicole J. Thomas-Dorris, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Luboya Musangu, a native and citizen of the
Democratic Republic of the Congo (“DRC”), petitions for review
of an order of the Board of Immigration Appeals (“Board”)
denying his motion to reopen proceedings. We dismiss the
petition 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) (2012).
The time limit does not apply if the basis for the motion is to
seek asylum based on changed country conditions, “if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii).
This court reviews the denial of a motion to reopen
for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-
24 (1992); Mosere v. Mukasey, 552 F.3d 397, 400 (4th Cir. 2009);
see also 8 C.F.R. § 1003.2(a). The “denial of a motion to
reopen is reviewed with extreme deference, given that motions to
reopen are disfavored because every delay works to the advantage
of the deportable alien who wishes merely to remain in the
United States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.
2009) (internal quotation marks omitted). The motion “shall
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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
and other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).
Also, the motion shall not be granted unless it appears to the
Board that the evidence “sought to be offered is material and
was not available and could not have been discovered or
presented at the former hearing[.]” Id.Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including an
aggravated felony. Under § 1252(a)(2)(C), this court retains
jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision, such as whether [Musangu] [i]s
an alien and whether []he has been convicted of an aggravated
felony.” Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir.
2002). If the court is able to confirm these two factual
determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), the
court can only consider “constitutional claims or questions of
law.” See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir.
2007).
Circuit courts have uniformly held that the
prohibition against reviewing final orders of removal when the
alien is removable for having been convicted of an aggravated
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felony or other criminal offense extends to denials of motions
to reopen. See Larngar v. Holder, 562 F.3d 71, 75 (1st Cir.
2009) (motion to reopen to apply for relief under the Convention
Against Torture); Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir.
2008); Cruz v. Attorney Gen., 452 F.3d 240, 246 (3d Cir. 2006);
Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2004); Dave v.
Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004); Patel v. Attorney
Gen., 334 F.3d 1259, 1262 (11th Cir. 2003); Sarmadi v. INS, 121
F.3d 1319, 1321 (9th Cir. 1997).
It is uncontested that Musangu is an alien who was
found removable for having been convicted of an aggravated
felony. Thus, our review is limited to constitutional claims
and questions of law. Musangu fails to raise either a
constitutional question or a question of law regarding the
Board’s finding that he did not show a change in country
conditions as it relates to his circumstances.
Accordingly, we dismiss the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DISMISSED
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