Erazo v. United States Dep’t of Justice, (2nd Cir. 2007)

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06-5046-ag

Erazo v. United States Dep't of Justice

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

(SUMMARY ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 17th day of December, two thousand and seven.

PRESENT:

HON. CHESTER J. STRAUB,

HON. PETER W. HALL,

Circuit Judges,

HON. CHARLES S. HAIGHT, JR.,*

District Judge.

Hernan Erazo,

Petitioner,

-v.- SUMMARY ORDER

No. 06-5046-ag

United States Department of Justice,

Respondent.

HERNAN ERAZO , pro se, Brooklyn, New York, for Petitioner.

CINDY S. FERRIER , Senior Litigation Counsel; Peter D. Keisler, Assistant Attorney General; Joseph A. O'Connell, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

AFTER ARGUMENT AND UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Petitioner Hernan Erazo, pro se, seeks review of an October 11, 2006 order of the BIA denying Erazo's motion to reopen his immigration proceedings. We presume the parties' familiarity with the underlying facts and procedural history of the case.

It is well-established that "the filing of a motion to reopen does not toll the time for filing a petition for review of the BIA's final exclusion or deportation orders." Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam) (citing Stone v. INS, 514 U.S. 386, 405­06 (1995)).

Erazo challenges various aspects of his deportation proceedings that are unrelated to the denial of his motion to reopen, such as his claim that the immigration judge ("IJ") was improperly biased in deciding Ezaro's application for suspension of deportation. However, this claim of bias was fully adjudicated and dismissed by the BIA in June 2006. Erazo failed to file a timely petition for review from the BIA's June 2006 order affirming the IJ's denial of Erazo's application for suspension of deportation. Therefore, we are "precluded from passing on the merits of the underlying [deportation] proceedings," and must confine our review to the denial of Erazo's motion to reopen those proceedings. Id. (citation and internal quotation marks omitted).

This Court reviews the BIA's denial of a motion to reopen deportation proceedings or its denial of a motion for reconsideration for abuse of discretion. See Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006) (motion to reopen proceedings); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (motion for reconsideration). The BIA exceeds its allowable discretion where its decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur, 413 F.3d at 233­34 (citation and internal quotation marks omitted).

Here, Erazo's motion to reopen alleged that the IJ was improperly biased in deciding his application. Our review of the record indicates that Erazo failed to support his allegations with previously unavailable evidentiary material. As a result, the BIA did not exceed its allowable discretion in concluding that reopening was not warranted. See 8 C.F.R. § 1003.2(c)(1); Maghradze v. Gonzales, 462 F.2d 150, 156 (2d Cir. 2006). To the extent that Erazo's motion is construed as a motion for reconsideration, see 8 C.F.R. § 1003.2(b)(1), the BIA did not exceed its allowable discretion in denying the motion for the reasons stated above.

The petition for review is DENIED. As the Court has completed its review, the pending motion for a stay of removal is denied as moot.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

* The Honorable Charles S. Haight, Jr., United States District Judge for the Southern District of New York, sitting by designation.

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