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

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
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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Dec. 14, 2010) (unpublished order).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
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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.