Al-Mousa v. Holder ( 2010 )

Case: 07-61003 Document: 00511054788 Page: 1 Date Filed: 03/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 17, 2010
No. 07-61003
Summary Calendar Charles R. Fulbruge III
Clerk
ABD ALRAHMAN AL-MOUSA
Petitioner
v.
ERIC H HOLDER, US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A74 409 240
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Abd Alrahman Al-Mousa, a native and citizen of Syria, petitions for review
of the Board of Immigration Appeals (BIA) denial of his 2007 motion to reopen
his removal proceedings. Al-Mousa was removed to Syria in 2005. The BIA
rejected his motion to reopen based upon 8 C.F.R. § 1003.2(d), which provides in
relevant part that “[a] motion to reopen . . . shall not be made by or on behalf of
a person who is the subject of removal . . . proceedings subsequent to his . . .
departure from the United States.”
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 07-61003 Document: 00511054788 Page: 2 Date Filed: 03/17/2010
No. 07-61003
Al-Mousa argues that the BIA’s denial of his motion to reopen based upon
8 C.F.R. § 1003.2(d) was contrary to the language of 18 U.S.C. § 1229a(c)(7)(A),
which provides: “An alien may file one motion to reopen proceedings under this
section. . . .” 8 U.S.C. § 1229a(c)(7)(A). In support of his argument, he relies in
part on the Fourth Circuit’s opinion in William v. Gonzales, 499 F.3d 329, 332
(4th Cir. 2007), and the Ninth Circuit’s opinions in Lin v. Gonzales, 473 F.3d
979, 982 (9th Cir. 2007), and Reynoso-Cisneros v. Gonzales, 491 F.3d 1001, 1002
(9th Cir. 2007).
In Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009), we rejected materially
indistinguishable arguments. We first concluded that because § 1229a(c) did not
grant Ovalles the right to file an untimely motion to reconsider or reopen, he
could not rely on that statute to challenge the validity of the post-departure bar
in § 1003.2(d). Id. at 296, 299-300. Similarly, in this case, Al-Mousa cannot rely
on § 1229a(c)(7)(A) to challenge the post-departure bar in § 1003.2(d) because his
motion to reopen, which was filed in 2007, more than 90 days after the 2003 final
order of removal, was untimely. See id.; § 1229a(c)(7)(C).
In Ovalles, we also rejected Ovalles’s reliance on the Ninth Circuit’s
opinions in Lin and Reynoso-Cisneros for the proposition that § 1003.2(d) did not
apply to his case because he was no longer the subject of a removal proceeding.
Ovalles, 577 F.3d at 297-98. We concluded that the post-departure bar on
motions to reconsider and reopen applied and was intended to apply to aliens
who departed the country following the termination of their removal
proceedings. Id. Accordingly, Al-Mousa’s arguments are without merit in light
of our opinion in Ovalles, and his petition for review is DENIED.
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