Tesfaldet Abraha v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-1739
___________
TESFALDET ABRAHA,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent
___________
PETITION FOR REVIEW OF AN ORDER
FROM THE BOARD OF IMMIGRATION APPEALS
(No. A78-514–064)
___________
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2003
BEFORE: BECKER, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.
(Filed: February 4, 2003)

-- 1 of 5 --

2
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This case presents a challenge to the Board of Immigration Appeals’ denial of
an alien’s motion for reconsideration. Because the Board did not abuse its discretion in
denying the motion, we will affirm the BIA and deny the petition for review.
We write for the parties, who are already familiar with the facts of this case.
Therefore we limit our discussion to those facts essential to our decision. Tesfaldet
Abraha, a native and citizen of Ethiopia, applied for asylum and withholding of removal. An
Immigration Law Judge denied Abraha’s application. Abraha sought timely review by the
Board of Immigration Appeals. The Board conducted de novo review of the claim and
upheld the ILJ’s decision on December 18, 2001.
Within the thirty days allowed to challenge the Board’s decision, Abraha filed
a motion for reconsideration. The Board denied Abraha’s motion for reconsideration, and
Abraha now timely appeals from that decision. We review the Board’s denial of a motion
for reconsideration for abuse of discretion. See Nocon v. INS, 789 F.2d 1028, 1029 (3d
Cir. 1986). To obtain reconsideration, the alien must specify errors of fact or law in the
Board’s decision, supported by pertinent authority. See 8 C.F.R. §3.2(b)(1).
In his motion for rehearing before the Board, Abraha distinguished his case
from Faddoul v. INS, 37 F.3d 185 (5th Cir. 1994), which the Board cited in its December

-- 2 of 5 --

3
decision. In distinguishing his case from Faddoul, Abraha did not point to any legal error
committed by the Board, and he does not now challenge the Board’s explanation that it
cited Faddoul only for the proposition that matters of citizenship are left to the sovereign.
Similarly, Abraha did not specify any factual errors in the Board’s December decision. As
the Board noted in denying the motion for reconsideration, “the facts indicated by the
respondent . . . were all factors which we took into consideration in our previous order.”
App. at 14. Because Abraha failed to meet the requirements of specifying legal and factual
errors to obtain a rehearing, the Board did not abuse its discretion in denying his motion.
See e.g., Nocon, 789 F.2d at 1033.
Instead of focusing on his challenge to the Board’s denial of his motion for
reconsideration, Abraha attempts to challenge Board’s underlying December decision.
However, the December decision is not properly before us. Although Abraha filed his
petition for review within 90 days of the Board’s first decision, he only sought review of
the Board’s decision “denying the Petitioner’s Motion to Reconsider the Board’s dismissal
of his appeal of the denial of his application . . . ” App. at A-3. Review of the original
decision and review of the motion for reconsideration are distinct. See Stone v. INS, 514
U.S. 386 (1995); Nocon, 789 F.2d at 1033-34. In a challenge to the motion to reconsider
we cannot review the underlying decision as if it were properly before us, for to do so
would be inconsistent with the Supreme Court’s decision in Stone. Because the Board did
not abuse its discretion in denying Arbaha’s motion for reconsideration, we will affirm the
Board’s decision and deny the petition for review.

-- 3 of 5 --

4

-- 4 of 5 --

_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

-- 5 of 5 --