                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

Shah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5078




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-5078


                               NILESH KAMAR SHAH,
                                               Petitioner

                                           v.

                             ALBERTO R. GONZALES,
                         Attorney General of the United States,
                                                      Respondent



                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                   (No. A77-699-780)
                        Immigration Judge: Hon. Henry S. Dogin


                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 1, 2008

                  Before: RENDELL and CHAGARES, Circuit Judges
                             POLLAK,* District Judge

                               (Filed: February 21, 2008)


                                       OPINION




   *
    Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge

       Nilesh Kamar Shah petitions for review of the Board of Immigration Appeals’

(“BIA”) order of November 17, 2006, denying his motion to reopen and reconsider. For

the reasons given below, his petition will be denied.

                                               I.

       Petitioner, a native and citizen of India, entered the United States without

inspection in 1999. He was ordered removed in absentia in 2001. In 2004, he

successfully moved to reopen the proceeding. At a subsequent hearing before an

immigration judge (“IJ”), he conceded removability. He applied for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”), arguing that he

would be subject to persecution and torture in India on account of his Hindu faith. The IJ

found petitioner’s testimony not credible and ordered his removal on October 8, 2004.

Shah appealed, and the BIA affirmed on July 17, 2006. Shah moved for reconsideration

and reopening. On November 17, 2006, the BIA denied that motion. Shah has petitioned

this court for review of the BIA’s order of November 17, 2006.

                                              II.

       We review the denial of a motion to reconsider and reopen for abuse of discretion.

See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “Under the abuse of discretion

standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to

law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks



                                               2
omitted). We review de novo questions of law, including whether a petitioner’s right to

due process was violated. See Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).

                                             III.

       Petitioner makes two claims of error with regard to the denial of his motion to

reopen and reconsider.1

                                             A.

       First, petitioner contends that the BIA denied him due process of law and abused

its discretion because the BIA refused to consider the evidence petitioner submitted in

support of his motion on the ground that the evidence was “time-barred.”

       Under 8 C.F.R. § 1003.2(c)(1), a motion to reopen “shall not be granted unless it

appears to the Board that evidence sought to be offered . . . was not available and could

not have been discovered or presented at the former hearing.” See Caushi v. Att’y Gen.,

436 F.3d 220, 231 (3d Cir. 2006).

       The BIA did not fail to consider the evidence presented by petitioner. The BIA’s

opinion discusses the evidence in detail, concluding that the evidence was not properly

presented in a motion to reopen because it could have been discovered or presented at




   1
     Petitioner has petitioned for review only of the BIA’s denial of his motion to reopen
and reconsider. Because petitioner did not petition for review of the BIA’s order of July
17, 2006, dismissing his appeal of the IJ’s denial of relief, we lack jurisdiction to review
that order. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 404-06 (1995).
Accordingly, we cannot consider petitioner’s contention that the BIA erred in that order
in affirming the IJ’s adverse credibility determination.

                                              3
petitioner’s 2004 hearing. Petitioner does not identify errors in the BIA’s determination

that the evidence could have been presented in 2004; nor are any such errors apparent.

Accordingly, we find no merit in petitioner’s challenge, on this ground, to the BIA’s

denial of his motion to reopen and reconsider.2

                                                 B.

         Second, petitioner contends that the BIA denied him due process of law “since he

was never given the opportunity to present his case to a judge prior to the original order

being entered” in 2001, in absentia and allegedly without notice to petitioner. This

argument is without merit, because petitioner was not removed on the basis of the 2001

order of removal. Rather, following the reopening of his case in 2004, petitioner was

given a full and fair opportunity to present evidence on his own behalf at a hearing held

on October 8, 2004. Petitioner, represented by counsel, conceded removability and

presented evidence in support of his applications for relief. His petition will therefore be

denied on this ground as well.




   2
       Petitioner does not contend that 8 C.F.R. § 1003.2(c)(1) is itself unconstitutional.

                                             4
