Irma Del Carmen Valle v. Eric Holder, Jr. , 466 F. App'x 512 ( 2012 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 12a0288n.06
    No. 10-4475
    UNITED STATES COURT OF APPEALS                                FILED
    FOR THE SIXTH CIRCUIT
    Mar 13, 2012
    IRMA DEL CARMEN VALLE,                               )                         LEONARD GREEN, Clerk
    )
    Petitioner,                                   )
    )
    v.                                                   )       ON PETITION FOR REVIEW
    )       FROM A FINAL ORDER OF THE
    ERIC H. HOLDER, JR., Attorney General,               )       BOARD OF IMMIGRATION
    )       APPEALS
    Respondent.                                   )
    Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.
    PER CURIAM. Irma Del Carmen Valle, a native and citizen of El Salvador who is
    represented by counsel, petitions for review of a Board of Immigration Appeals order that denied her
    motion to reopen her removal proceedings.
    Valle entered the United States illegally in 1989 or 1990. Valle filed an application for
    asylum in 1995, and an immigration officer referred her application to an immigration judge in 2003.
    Subsequently, Valle withdrew her application for asylum and sought relief only under the
    Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105–100, 111
    Stat. 2160 (1997), and alternatively, requested voluntary departure. Following an evidentiary
    hearing, an Immigration Judge issued an oral decision in which he denied Valle’s requests for relief.
    The Board of Immigration Appeals dismissed Valle’s subsequent appeal as without merit.
    Valle did not petition this court for judicial review of the Board’s decision. Rather, Valle
    filed before the Board a motion to reconsider or to reopen her removal proceedings to seek an
    adjustment of her status. The request was made, in part, because an application for a visa filed for
    her by her spouse had been approved. The Board denied Valle’s motion, and this timely petition
    No. 10-4475
    -2-
    followed. We denied Valle’s motion to stay her removal. Valle v. Holder, No. 10-4475 (6th Cir.
    Dec. 14, 2010) (unpublished order).
    Valle contends that: 1) she established eligibility for NACARA relief; 2) she was of good
    moral character for seven years preceding her application; 3) the Immigration Judge abused his
    discretion in denying her request for voluntary departure; and 4) she was eligible for relief under 8
    U.S.C. § 1255(i). The government responds that we lack jurisdiction to review the underlying denial
    of voluntary departure, and that the Board properly denied Valle’s motion to reconsider or to reopen.
    Upon consideration, the petition for review is denied because the Board did not abuse its discretion
    in denying Valle’s motion to reconsider or to reopen.
    Valle devotes most of her brief to challenges to the Immigration Judge’s decision to deny her
    voluntary departure and relief under NACARA. The government correctly notes that we lack
    jurisdiction to review the underlying agency decision to deny Valle relief. Generally, an alien may
    file a motion to reconsider within thirty days of the entry of an order of removal and a motion to
    reopen within ninety days of the order. Gor v. Holder, 
    607 F.3d 180
    , 184 (6th Cir. 2010), cert.
    denied, 
    131 S. Ct. 3058
    (2011). However, neither a motion to reconsider nor a motion to reopen
    tolls the thirty-day time period for seeking judicial review of the underlying decision. 
    Id. at 185.
    Therefore, we have no jurisdiction to review the Board’s order that dismissed Valle’s appeal from
    the Immigration Judge’s decision.
    Furthermore, the Board did not abuse its discretion in denying Valle’s motion to reconsider
    or to reopen her removal proceedings. The legal authority for motions to reopen comes solely from
    regulations promulgated by the Attorney General. INS v. Doherty, 
    502 U.S. 314
    , 322 (1992). The
    regulations provide that a motion to reopen is “within the discretion of the Board,” and that the
    “Board has discretion to deny a motion to reopen even if the party moving has made out a prima
    facie case for relief.” 8 C.F.R. § 1003.2(a); see also 
    Doherty, 502 U.S. at 323
    . The Board has
    “broad discretion” to grant or deny a motion to reopen, 
    Gor, 607 F.3d at 187
    , and the Board’s denial
    of a motion to reconsider or to reopen is reviewed only for an abuse of that discretion. Gordillo v.
    Holder, 
    640 F.3d 700
    , 702 (6th Cir. 2011); Denko v. INS, 
    351 F.3d 717
    , 723 (6th Cir. 2003). An
    No. 10-4475
    -3-
    abuse of discretion occurs where a denial was without rational explanation, was an inexplicable
    departure from established policies, or was based on invidious discrimination. Mezo v. Holder, 
    615 F.3d 616
    , 620 (6th Cir. 2010); 
    Denko, 351 F.3d at 723
    .
    Valle cannot show that the Board abused its discretion. The Board correctly concluded that
    Valle was not eligible for adjustment of her status because she was not “inspected and admitted or
    paroled into the United States.” See 8 U.S.C. § 1255(a). Further, Valle was also ineligible for
    adjustment of her status on the basis of an approved visa petition because the petition was filed after
    April 30, 2001. See 8 U.S.C. § 1255(i)(1)(B)(i). Therefore, the Board’s decision is not an abuse of
    its broad discretion.
    The petition for review is denied.