Constantin Rusu v. ERIC H. HOLDER, JR., Attorney General

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2139
CONSTANTIN RUSU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 10, 2011 Decided: April 11, 2011
Before KING, SHEDD, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Constantin Rusu, Petitioner Pro Se. Puneet Cheema, Tyrone
Sojourner, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Constantin Rusu, a citizen and native of Romania,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying his third motion to reopen. We deny
the petition for review.
An alien may file one motion to reopen within ninety
days of the entry of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2010).
This time limit does not apply if the basis for the motion is to
seek asylum or withholding of removal based on changed country
conditions, “if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii).
This court reviews the denial of a motion to reopen
for abuse of discretion. 8 C.F.R. § 1003.2(a) (2010); INS v.
Doherty, 502 U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552
F.3d 397, 400 (4th Cir. 2009). The Board’s “denial of a motion
to reopen is reviewed with extreme deference, given that motions
to reopen are disfavored because every delay works to the
advantage of the deportable alien who wishes merely to remain in
the United States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th
Cir. 2009) (citations and internal quotation marks omitted).
The motion “shall state the new facts that will be proven at a

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hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8
C.F.R. § 1003.2(c)(1) (2010). It “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.” Id. This court
will reverse a denial of a motion to reopen only if it is
“‘arbitrary, irrational, or contrary to law.’” Mosere, 552 F.3d
at 400 (citing Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
2002)).
Because this is Rusu’s third motion to reopen, the
motion is clearly barred by the numerical limitations. It is
also untimely, having not been filed within ninety days of the
final administrative decision. See 8 C.F.R. § 1003.2(c)(2).
We conclude that the Board did not abuse its
discretion by denying Rusu’s third motion to reopen. He failed
to show changed conditions in Romania that would warrant
reopening on his behalf. Furthermore, this court does not have
jurisdiction to review the Board’s decision denying sua sponte
reopening. Mosere, 552 F.3d at 400-01.
Accordingly, we deny the petition for review. We also
deny Rusu’s motion for appointment of counsel. We grant his
motion to proceed in forma pauperis. We also grant the Attorney
General’s motion to designate the administrative record as the

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appendix. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DENIED

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