Anastacio Ascencio-Toribio v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4434
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ANASTACIO ASCENCIO-TORIBIO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
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On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A092-001-914)
Immigration Judge: Honorable Walter A. Durling
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2010
Before: BARRY, AMBRO and COWEN, Circuit Judges
(Opinion filed: October 5, 2010)
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OPINION
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PER CURIAM
Anastacio Ascencio-Toribio petitions pro se for review of the order of the Board
of Immigration Appeals (“BIA”) denying his motion to reopen its final order of removal.
We will deny the petition.

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I.
Ascencio-Toribio is a citizen of Mexico and, since 1991, has been a lawful
permanent resident of the United States. In 2007, he pleaded guilty in the United States
District Court for the Eastern District of North Carolina to conspiring to distribute more
than five kilograms of cocaine in violation of 21 U.S.C. § 846. The District Court
sentenced him to 135 months of imprisonment.
The Government later charged him as removable on the grounds that his
conviction constitutes both an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and a
controlled substance violation, see 8 U.S.C. § 1227(a)(2)(B)(I). Before the Immigration
Judge (“IJ”), Ascencio-Toribio conceded the charges through counsel. His counsel later
sought and was granted permission to withdraw.
While his removal proceeding was pending, Ascencio-Toribio appealed his federal
conviction, but the United States Court of Appeals for the Fourth Circuit dismissed it as
untimely. He then filed a motion under 28 U.S.C. § 2255 arguing, inter alia, that his
guilty plea was involuntary because his counsel and the trial judge told him, in the
presence of a prosecuting attorney and an immigration official, that it would not result in
his removal. That motion remains pending as of the date of this opinion.
On March 4, 2009, the IJ sustained the charges of removability and ordered
Ascencio-Toribio’s removal to Mexico. The IJ noted that he earlier had denied relief on
the basis of Ascencio-Toribio’s collateral attack on his conviction and deemed that

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Ascencio-Toribio had abandoned any application for asylum or other relief because he
still had not filed one over four months after the deadline for doing so. Ascencio-Toribio
timely appealed to the BIA, which dismissed his appeal on the merits on June 5, 2009.
Any petition for review of that ruling was due to be filed with this Court by July 6, 2009,
but Ascencio-Toribio did not file one and we thus lack jurisdiction to review that ruling.
See 8 U.S.C. § 1252(b)(1); Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir. 2008) (citing
Stone v. INS, 514 U.S. 386, 405 (1995)).
Ascencio-Toribio later filed a motion to reopen his removal proceeding. The BIA
denied it on November 16, 2009, and Ascencio-Toribio petitions for review of that ruling.
II.
We have jurisdiction to review the BIA’s denial of reopening pursuant to 8 U.S.C.
§ 1252, and we do so for abuse of discretion. See Zheng v. Att’y Gen., 549 F.3d 260,
264-65 (3d Cir. 2008). Under that standard, “[w]e will not disturb the BIA’s decisions
‘unless they are found to be arbitrary, irrational, or contrary to law.’” Id. at 265 (citation
omitted). We perceive no abuse of discretion here.
The BIA denied Ascencio-Toribio’s motion on the grounds both that it was
untimely and that, even considered on the merits, it did not present a basis to reopen or
reconsider because it did not rely on any new or additional evidence or circumstances that
he had not raised to the BIA in his appeal. See 8 C.F.R. § 1003.2(b)(1), (c)(1). The
second point is sufficient to support the BIA’s conclusion.

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In his initial appeal to the BIA, Ascencio-Toribio argued primarily that his former
counsel wrongfully failed to file an asylum application and that his collateral attack on his
conviction—including his claims that he was told by his counsel and the trial judge he
would not be removed as a result of his guilty plea—should entitle him to relief from the
order of removal. (A.R. 18-23.) He also argued that the IJ violated his due process
rights. As noted, we lack jurisdiction to review the BIA’s treatment of these claims. In
his motion to reopen, he argued the same grounds and did not present any new evidence
or changed circumstances. (A.R. 6-12.) Thus, we cannot say that the BIA acted
arbitrarily or contrary to law in finding no basis to reopen or reconsider its prior ruling.
For Ascencio-Toribio’s benefit, we note that his federal conviction is final for
immigration purposes notwithstanding the pendency of his collateral § 2255 proceeding.
See Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008). However, if his federal
conviction ultimately is invalidated in that proceeding, he may file another motion to
reopen with the BIA on that basis, though we express no opinion on the merits of any
such motion.
Accordingly, the petition for review is denied.

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