Albanil v. Holder

U.S. Court of Appeals for the Second Circuit
Albanil v. Holder, 481 F. App'x 25 (2d Cir. 2012)

Albanil v. Holder

Opinion

SUMMARY ORDER

Petitioner Maria del Carmen Albanil, a native and citizen of Honduras, seeks review of a February 24, 2011, order of the BIA denying her motion for reconsideration. In re Maria del Carmen Albanil, No. A027 932 461 (B.I.A. Feb. 24, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion for reconsideration for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). The BIA denied Albanil’s motion because it concluded that, rather than identifying any errors of fact or law in its previous decision, it reasserted the same claims she had raised on appeal. See 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority”). Albanil’s opening brief does not challenge that conclusion; instead it argues that the BIA erred in its underlying decision. We do not have jurisdiction to review that decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir. 2001). Accordingly, Albanil has waived any challenge to the BIA’s decision denying reconsideration. See JP Morgan Chase Bank v. Altos Hornos de Mexico, 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an appellant’s opening brief are waived even if the appellant ... raised them in a reply brief.”). While we have discretion to excuse such an error if manifest injustice would otherwise result, see id., this case does not warrant such an exercise of discretion as the BIA in any case did not abuse its discretion in denying reconsideration.

For the foregoing reasons, the petition for review is DENIED. As we have 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 DISMISSED 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 34.1(b).

Reference

Full Case Name
Maria Del Carmen ALBANIL, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Status
Unpublished