Tulio Portal v. Ashcroft, 393 F.3d 427, 430 n.4 3d Cir. 2005 . The BIA remains within the DOJ.…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-2432
__________
TULIO PORTAL,
Petitioner,
vs.
United States Attorney General,
Respondent.
__________
On Petition for Review of an Order of
the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No. A77 037 642)
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 8, 2005
___________
Before: ROTH, FUENTES, and GARTH, Circuit Judges
( Filed: November 22, 2005)
__________
OPINION
__________

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As of March 2003, “the INS ceased to exist as an independent agency within the United1
States Department of Justice [‘DOJ’] and its functions were transferred to the newly formed
United States Department of Homeland Security.” Leia v. Ashcroft, 393 F.3d 427, 430 n.4 (3d
Cir. 2005). The BIA remains within the DOJ. Knapik v. Ashcroft, 384 F.3d 84, 86 n.2 (3d Cir.
2004) (citing Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat.
2135 (2002)).
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Garth, Circuit Judge:
Tulio Portal (“Mr. Portal”) petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen because it was untimely filed.
We will deny the petition.
I.
On November 14, 2001, the former Immigration and Naturalization Service
(“INS”) issued a Notice to Appear charging Mr. Portal, a native and citizen of Peru, with1
being removable as an alien present in the United States who had not been admitted or
paroled. See 8 U.S.C. §1182(a)(6)(A)(i). An Immigration Judge (“IJ”) found Mr. Portal
removable as charged, and granted him voluntary departure, on February 28, 2002. Mr.
Portal moved to reopen proceedings (“first motion to reopen”) so that he could apply for
adjustment of status based on his marriage to a United States citizen. The IJ denied this
motion on April 15, 2002, and, on May 7, 2003, the BIA affirmed. Mr. Portal did not
petition for review of the BIA’s May 7, 2003 decision.
Mr. Portal and his first wife divorced, but, on January 14, 2004, Mr. Portal re-
married. On March 4, 2004, Mr. Portal moved the BIA to reopen proceedings (“second
motion to reopen”) so that he could apply to adjust status based on the pending

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employment-based visa petition (“I-140 petition”) of his second wife. The BIA denied
that motion as untimely on April 21, 2004. Mr. Portal petitions this Court to review the
BIA’s April 21, 2004 decision.
II.
We exercise jurisdiction over Mr. Portal’s Petition for Review pursuant to 8 U.S.C.
§1252(a)(1). We review the denial of a motion to reopen for abuse of discretion. Lu v.
Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). “We have traditionally disfavored motions to
reopen immigration proceedings.” Id.
III.
In his brief to this Court, Mr. Portal has not challenged the BIA’s conclusion that
his second motion to reopen was untimely. He has therefore waived the only viable issue
on appeal. Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).
We note nevertheless that the BIA did not abuse its discretion in denying Mr.
Portal’s second motion to reopen. With certain exceptions that do not apply here, a
motion to reopen must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened. 8 C.F.R.
§1003.2(c)(2). Mr. Portal filed his second motion to reopen nearly ten months after the
BIA’s May 7, 2003 decision.
In his brief, Mr. Portal advances arguments about the merits of his first motion to
reopen. Mr. Portal has not, however, petitioned for review of the BIA’s decision

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affirming the IJ’s denial of his first motion to reopen, nor could he do so at this late date.
8 U.S.C. §1252(b)(1). We therefore lack jurisdiction to consider these arguments.
Mr. Portal also argues here for the first time that he is eligible to adjust his status
based on his second wife’s approved I-140 petition. He has submitted with his brief a
copy of the notice approving the I-140 petition, which was issued almost two months after
the April 21, 2004 BIA decision we are asked to review here. We may not consider this
document because it did not appear in the administrative record. 8 U.S.C.
§1252(b)(4)(A).
Mr. Portal’s Petition for Review will be DENIED.

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