Sela v. Gonzales
Sela v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Muamet Sela, a native and citizen of Macedonia, seeks review of an April 11, 2006 order of the Board of Immigration Appeals (“BIA”) affirming the February 9, 2006 decision of Immigration Judge (“IJ”) Annete S. Elstein dismissing petitioner’s motion to reopen his deportation proceedings. In re Muamet Sela, No. A 29 253 992 (B.I.A. Apr. 11, 2006), aff'g No. A 29 253 992 (Immig. Ct. N.Y. City Feb. 9, 2006). The IJ had previously entered an order of deportation in absentia in February 2002, at which point Sela’s
When the BIA dismisses an appeal from the denial of a motion to reopen, this Court reviews the BIA’s decision for an abuse of discretion. Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conelusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
Here, the BIA did not abuse its discretion by affirming the IJ’s denial of Sela’s motion to reopen. In absentia orders of deportation may only be rescinded if (1) the alien files a motion to reopen within 180 days of the order of deportation and sets forth exceptional circumstances explaining his failure to appear, or (2) files a motion to reopen at any time and provides proof that he did not receive proper notice of the deportation hearing. 8 U.S.C. § 1229a(b)(5)(C).
Moreover, the BIA and IJ properly found that Sela failed to establish the due diligence necessary to toll the 180-day period for reopening. The record reflects that Sela was aware of his in absentia order as early as February 2002, yet he did not file his motion to reopen until four years later in February 2006. While Sela summarily asserts in his motion that he “exercised the due diligence required under Iavorski v. United States INS, 232 F.3d 124 (2d Cir. 2000),” he has failed to offer any evidence or factual allegations to support this assertion. In the absence of any explanation, Sela’s four-year delay in filing his motion did not amount to due diligence to warrant equitable tolling. See id. at 134.
Additionally, the BIA did not abuse its discretion when it neglected to address Sela’s claim of “changed country conditions.” The basis for Sela’s argument that “changed country conditions” or “changed circumstances” were present because he was eligible for relief under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), is simply unclear. Sela previously filed a motion to reopen
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
. Although the BIA denied Sela’s motion based upon former 8 U.S.C. § 1252b(c)(3), that section was repealed effective 1997 and recodified, as amended, without material change at 8 U.S.C. § 1229a(b)(5)(C).
Reference
- Full Case Name
- Muamet SELA v. Alberto R. GONZALES, Attorney General
- Status
- Published