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413 F.

3d 232

Sukhraj KAUR, Petitioner,

No. 03-40198.

United States Court of Appeals, Second Circuit.

Submitted: June 15, 2005.
Decided: June 22, 2005.

Sukhraj Kaur, pro se, Floral Park, N.Y. for Petitioner.

Steven J. Saltiel, Assistant United States Attorney (Joann M. Swanson,
Chief, Civil Division, of counsel; Kevin V. Ryan, United States Attorney
for the Northern District of California, on the brief), United States
Attorney's Office for the Northern District of California, San Francisco,
CA for Respondent.
Before: CABRANES and RAGGI, Circuit Judges, and SAND,* District

Petitioner Sukhraj Kaur, a native and citizen of India, petitions this Court for
review of a June 20, 2003 order of the Board of Immigration Appeals ("BIA" or
"Board") denying petitioner's motion to reopen proceedings in order to submit
"new evidence" regarding her asylum claim. In an earlier order, dated
December 13, 2002, the BIA affirmed a decision by an immigration judge
("IJ") denying petitioner's application for asylum and withholding of removal,
and further denied petitioner relief under the United Nations Convention
Against Torture, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988),
1465 U.N.T.S. 85; 8 C.F.R. 208.16. We assume that the parties are familiar
with the facts, the procedural history, and the scope of the issues presented on

As a threshold matter, we note that our review is limited to the BIA's decision
not to reopen petitioner's removal proceedings. Petitioner did not timely petition

for review of the December 13, 2002 order of the BIA that affirmed the IJ's
denial of her underlying asylum application. It is also 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, such as the December 13,
2002 order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131
L.Ed.2d 465 (1995). We are therefore "precluded from passing on the merits of
the underlying exclusion proceedings," and must confine our review to the
denial of petitioner's motion to reopen these proceedings. Zhao v. DOJ, 265
F.3d 83, 90 (2d Cir.2001).

We review the BIA's denial of a motion to reopen for abuse of discretion. Zhao,
265 F.3d at 92-93. "An abuse of discretion may be found in those
circumstances where the Board's 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." Id. at 93 (internal
citations omitted).

Petitioner's appellate brief argues the merits of her underlying asylum claim,
but does not suggest any reasons why the BIA might have abused its discretion
in denying petitioner's motion to reopen removal proceedings.

In any event, upon review of the record of this case, we conclude that the BIA
did not abuse its discretion. The statutory framework governing asylum
proceedings "does not provide for motions to reopen or reconsider, and the
right to make such motions depends entirely on the administrative regulations."
1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law
and Procedure 3.05 (2005). BIA regulations, in turn, provide that "[a] motion
to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing." 8 C.F.R. 1003.2(c)
(1) (2005); see also Zhao, 265 F.3d at 90 ("[A] motion to reopen asks that the
proceedings be reopened for new evidence and a new decision, usually after an
evidentiary hearing. Such motions must state what new facts would be proven
at a hearing and be supported by affidavits or other evidentiary material.")
(internal citations omitted). In this case, the BIA's June 20, 2003 order clearly
explained that the evidence submitted by petitioner in support of her motion
was not "material" because it did not rebut the adverse credibility finding that
provided the basis for the IJ's denial of petitioner's underlying asylum
application. See Ballenilla-Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir. 1976)
(holding that "[i]mplicit" in the requirement that the party seeking reopening of
proceedings "state the new facts to be proved at the reopened hearing" is the

"the assumption that no such motion will be granted unless the facts alleged
would be sufficient, if proved, to change the result"); see also 1 Gordon,
Mailman & Yale-Loehr, ante 3.05 (noting that consideration of a motion to
reopen includes "an implicit requirement that the facts alleged would be
sufficient, if proved, to change the result").

We have considered all of petitioner's arguments and found each of them to be

without merit. Accordingly, the petition is denied and the decision of the Board
of Immigration Appeals is affirmed.


The Honorable Leonard B. Sand, United States District Judge for the Southern
District of New York, sitting by designation