Drita Sinistaj (02-4027); Marija Sinistaj (02-4028) v. JOHN ASHCROFT, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE

*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0210P (6th Cir.)
File Name: 04a0210p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DJON SINISTAJ (02-4026);
DRITA SINISTAJ (02-4027);
MARIJA SINISTAJ (02-4028),
Petitioners,
v.
JOHN ASHCROFT, Attorney
General; IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents.
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Nos. 02-4026/
4027/4028
On Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A72 167 971; A72 167 972; A72 167 973.
Argued: April 27, 2004
Decided and Filed: July 7, 2004
Before: MARTIN and ROGERS, Circuit Judges; BELL,
Chief District Judge.*
2 Sinistaj, et al. v.
Ashcroft, et al.
Nos. 02-4026/4027/4028
_________________
COUNSEL
ARGUED: Richard A. Kulics, IMMIGRATION LAW
CENTER, Birmingham, Michigan, for Petitioners. Norah
Ascoli Schwarz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondents. ON BRIEF:
Richard A. Kulics, IMMIGRATION LAW CENTER,
Birmingham, Michigan, for Petitioners. Norah Ascoli
Schwarz, Linda S. Wendtland, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Djon Sinistaj
petitions for review of a Board of Immigration Appeals
decision denying his motion “to reopen or reconsider” a prior
decision by the Board. Mr. Sinistaj’s wife, Drita, and their
daughter, Marija, are also petitioners in this case, but their
claims are entirely derivative of those of Mr. Sinistaj. For the
reasons that follow, the petition for review is DENIED.
I.
Djon, Drita and Marija Sinistaj are ethnic Albanians who
are citizens of Montenegro, a region in what was formerly the
nation of Yugoslavia. The Sinistaj family entered the United
States without inspection on March 31, 1994, and Mr. Sinistaj
eventually filed an application for asylum. Two individuals
allegedly “assisted” in the preparation of this application: Mr.
Prenk Camaj, who apparently also goes by the name “Father
Frank,” and Ms. Elizabeth Muntean. According to Mr.
Sinistaj, Mr. Camaj and Ms. Muntean fraudulently “held

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themselves out as being qualified to represent aliens before
the [Immigration and Naturalization Service] concerning
asylum and deportation matters” and erroneously advised him
to submit false and inconsistent information to the Service,
which he did.
Mr. Sinistaj appeared before an asylum officer on
August 31, 1995. He was notified the following month that
his application had not been granted and that his case was
being referred to an immigration judge. Deportation
proceedings commenced soon afterward. On May 16, 1996,
Mr. Sinistaj appeared before an immigration judge,
represented by Attorney Carl Weidman. He conceded
deportability but again requested asylum, as well as
withholding of deportation and voluntary departure. On July
3, 1996, with the assistance of Attorney Weideman, Mr.
Sinistaj filed a renewed application for asylum. The
immigration judge held a hearing that featured primarily Mr.
Sinistaj’s own testimony. His wife also testified, but the
immigration judge noted that Mr. Sinistaj interjected several
times in an apparent attempt to channel or direct her
testimony—particularly after she began to contradict his
testimony concerning an incident in which he claims they
both were physically and verbally assaulted.
On March 3, 1997, at the conclusion of the hearing, the
immigration judge rendered an oral decision denying Mr.
Sinistaj’s applications for asylum and withholding of
deportation. The immigration judge found that his testimony
was not credible and that his claims of persecution were
unsupported by the evidence. The immigration judge granted
voluntary departure as to Mr. Sinistaj’s wife and daughter, but
held that Mr. Sinistaj was statutorily ineligible for such relief
because he lied under oath to procure an immigration
benefit—and that, in any event, voluntary departure would be
denied in the exercise of the immigration judge’s discretion
because of his false testimony and repeated attempts to direct
his wife’s testimony.
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Nos. 02-4026/4027/4028
Mr. Sinistaj appealed the immigration judge’s order,
arguing that the problems with his credibility were due to
faulty translation by the government translator. The Board of
Immigration Appeals dismissed the appeal, and that dismissal
was not appealed. On September 21, 1998, however, Mr.
Sinistaj filed with the Board a “motion to reopen or
reconsider” the Board’s prior decision. While the substance
of that motion dealt primarily with the issue of reopening, it
also stated that if “the Board finds that reopening in this case
is inappropriate because the evidence should or could have
been presented at the time of hearing, or that it was already
part of the record, then we respectfully request that the
[B]oard reconsider its decision to deny respondents [sic]
appeal for the reasons stated and under the authority cited in
support of the Motion to Reopen.” The purported basis for
reopening the case was that the “fraudulent” conduct of the
“unscrupulous individuals”—i.e., Mr. Camaj and Ms.
Muntean—caused Mr. Sinistaj to submit false and misleading
information to the Service, which served to undermine his
credibility in the eyes of the immigration judge and thereby
prevented him from obtaining a fair hearing. The
Immigration and Naturalization Service opposed the motion.
On August 19, 2002, the Board issued a written per curiam
order denying Mr. Sinistaj’s motion. The substance of the
Board’s order focused only upon the issue of reopening, and
did not explicitly analyze the issue of reconsideration. With
respect to the request for reopening, the order explained that
such a request may be granted only when based upon material
evidence that was unavailable at the prior hearing. The Board
concluded that because “[t]he assertions made by the
respondents were previously available” and the respondents
“had ample opportunity to pursue their claims against their
former representatives on direct appeal,” reopening was
“precluded.” This timely appeal followed.

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1Mr. Sinistaj argues that we should apply the doctrine of equitab le
tolling to excuse his delay in presenting his argument concerning Mr.
Camaj and M s. Muntea n, though he co ncedes that this Court has never
applied the do ctrine in this type of situatio n. Mr. Sinistaj has failed to
develop this argument in any coherent manner, and we can discern no
way in which the doctrine of equitable tolling co uld ap ply to entitle him
to reopening of his case.
II.
A.
Mr. Sinistaj first contests the Board’s denial of his request
for reopening, which we review for abuse of discretion. INS
v. Doherty, 502 U.S. 314, 322-23 (1992). “The decision to
grant or deny a motion to reopen or reconsider is within the
discretion of the Board,” and the Board may “deny a motion
to reopen even if the party moving has made out a prima facie
case for relief.” 8 C.F.R. § 1003.2(a). “A motion to reopen
proceedings shall not be granted” unless it is based upon
evidence that “is material and was not available and could not
have been discovered or presented at the former hearing . . . .”
Id. at § 1003.2(c)(1).
Mr. Sinistaj does not challenge the Board’s determination
that the evidence concerning Mr. Camaj and Ms. Muntean,
which formed the basis of the request for reopening, was
available at the time of the former hearing. For that reason
alone, the requirements for reopening have not been met. Id.
Thus, Mr. Sinistaj has failed to demonstrate entitlement to the
remedy of reopening, and the Board committed no abuse of
discretion in so finding.1
B.
Mr. Sinistaj also challenges the fact that the Board denied
his motion “to reopen or reconsider” without explicitly
6 Sinistaj, et al. v.
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Nos. 02-4026/4027/4028
analyzing the issue of reconsideration. We find this argument
unpersuasive as well.
Mr. Sinistaj filed one motion, styled a motion “to reopen or
reconsider,” and the Board denied that motion. The fact that
the Board did not explicitly analyze the issue of
reconsideration is of no consequence – at least in this case,
where Mr. Sinistaj failed to comply with the requirements set
forth in the applicable regulations and, therefore, was not
entitled to reconsideration in any event.
Pursuant to 8 C.F.R. § 1003.2(b), a motion for
reconsideration of a decision by the Board must “state the
reasons for the motion by specifying the errors of fact or law
in the prior Board decision,” and must be “supported by
pertinent authority.” The reconsideration section of Mr.
Sinistaj’s motion merely stated that “[i]f the Board finds that
reopening in this case is inappropriate because the evidence
should or could have been presented at the time of hearing, or
that it was already part of the record, then we respectfully
request that the [B]oard reconsider its decision to deny
respondents [sic] appeal for the reasons stated and under the
authority cited in support of the Motion to Reopen.” But
nowhere in the motion—in the reopening section or
otherwise—was there any identification of “errors of fact or
law in the prior Board decision” that would warrant
reconsideration. Id. The motion expounded upon the
problem of “unscrupulous individuals” “defrauding
immigrants” and asserted that Mr. Camaj and Ms. Muntean
were responsible for Mr. Sinistaj’s submission of false and
inconsistent information to the Service, but it identified no
factual or legal error committed by the Board. Indeed, the
motion even conceded that the identified problems were “not
due to the conduct of the Immigration Judge . . . .”
Moreover, the only legal authority cited in the motion was
a string-cite of three cases that purportedly deal with notions
of “due process” and “fundamental fairness,” but were not

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cited for any proposition related to reconsideration and do not
reveal any error committed by the Board in this case. Thus,
the cases cited do not constitute “pertinent authority” within
the meaning of 8 C.F.R. § 1003.2(b).
In short, because Mr. Sinistaj failed to meet the
requirements for reconsideration, the Board committed no
abuse of discretion in denying his motion. See, e.g., Nocon v.
INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (holding that
because petitioners’ motion for reconsideration failed to “state
the reasons for reconsideration” or cite “pertinent case
precedent,” “the Board was justified in denying the motion on
this ground and cannot be said to have abused its
discretion.”).
For these reasons, the petition for review of the Board’s
decision is DENIED.

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