* The Honorabl e Rob e rt Holmes Bell , Chief United St ates Dis tri ct Judge for the Western District of Michigan, s itti ng by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0210P (6th C ir.) File Name: 04a02 10p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
D JON S INISTA J (02-4026); D RITA S INISTA J (02-4027); M ARIJ A S INISTA J (02-4028),

Petitione rs,

v.

J OHN A SHCROFT , Attorney Genera l; I MMIGRATI ON AND N ATURALI ZATI ON S ERVICE ,

Responde nts. X - - - -
> , - - - - - - - N Nos. 02-4026/ 4027/4028

On Petition for Review of an Order of the Board o f Imm

igration Appeal s. Nos. A72 167 971; A72 167 972; A72 167 973.

Argued: April 27, 2004 Decided and Filed: July 7, 2004

Bef ore : M ART IN an d R OGE RS , C irc ui t J udg es; BELL,

Chief District Judge. * 2 Sinistaj, et al. v. Ashcroft, et al. Nos. 02-4026/4027/4028

_________________ COUNSEL

ARGUED: Richard A . Kulics, I MM IGRAT ION L

AW CENTER, Birmingham, Michigan, fo r Pe titioners. Norah Ascoli Schwarz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRI EF: Richa rdA . Kulics, I

MMIG RATI ON LA

W CENTER, Birming ham, M ichiga

n, for Pet

itioners. Norah As coli Schw arz, Linda

S. Wendtland, UNITED STA TE S DEPARTMENT OF JUSTICE, Washington, D.C., for Responde nts.

_________________

OPINION

_________________ BOYCE F. MARTIN, JR., Circ u it Judge. Djon Sinistaj petitions for re view of

a Boar d of I mmigrat ion Appea

ls decisiondenying

his motion “to reopen

or reconsider” a prior decisionby t

he Boar d. Mr. Sinis ta

j ’s wife, Drita, a

nd their daughter, Marija, a

re als o pet itioners i

n this cas e, but the ir claims are entirely der

ivative of those of Mr. Sinistaj. For the reasons that follow, the petition for review is DENI ED.

I. Djon, Drita and Marija Sinistaj are ethnic A lba nians who
are citizens of Montenegro, a region in what was formerly the nationof Yugoslavia. The Sinistaj family entered the United States withoutinspection onMarch 31, 1994, and Mr. Sinistaj eventua lly filed an application for asylum. Two individuals allege dly “assisted” in the preparation of this application: Mr. Prenk Camaj, who apparently

also goes by

the name “Father Frank,” and Ms. Elizabeth Muntean. Accord ing to Mr. Sinistaj, Mr. Camaj and Ms. Muntean fr audul ently “heldNos. 02-4026/4027/4028 Sinistaj, et al. v. Ashcroft, et al. 3

themselves out a s being qualified to represent aliens before the [Im m igration and Naturalization Service] concerning
as yl u m and deportation ma

tters” a nd erroneously

advised h im to submit false and

in consistent information to the Service, which he did.

Mr. Sinistaj appeared before an asy lum officer on Au gust 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 procee dings commenced

soon afterward. On May 16, 1996, Mr. Sinistaj ap

peared before an immi g ration judge, represented

by Attorney

Carl Weidman. He conceded deporta bility but again requested asy lum, as well as withholding of deportation and voluntary departu re. On July 3, 1996, with the assistance of A ttorney Weideman, Mr. Sinistaj filed a renewed a pplic ation for asylum. The immigration

judge h eld

a heari ng that f eature d primari ly

Mr. Sinistaj’s own t esti mony. 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 —partic ularly after s he be gan to c ontradict his testimony concerning an incident in which he claims they both were physic ally and verba lly assaulted.

OnMarch 3, 1997, at the conclusion of the he a ring, the immigration

judge r endere d an oral

d eci sion denying Mr. Sinistaj’s applications for asy lum and withholding of deportation. The immig

ration jud ge fou nd that his

testimony
was not credible and that his claims of pers e cution were unsupported

by the evidence. The immigration judge granted voluntary departu re as toMr. Sinistaj’s wife and daughter, but held that Mr. Sinistaj wa s statutor ily 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 exer

cise of the immigr

ation judg e’s discr etion because of his false testimony and re peated attempts to direct his wife’s testimony. 4 Sinistaj, et al. v. Ashcroft, et al. Nos. 02-4026/4027/4028

Mr. Sini staj appealed the immigration judge’s orde r, arguing that the problems with his cred ib ility were du e to faulty translation by the g overnment translator. The Board of Immigration

Appeals dismissed

the appe al, and that dismissal
was not appealed. On September 21, 1998, however, Mr. Sinistaj filed with the Board a “motion to re op en or reconsider” the Board’s

prior decision. While the substance of that motion dea

lt primaril y w ith the issu

e of reo pening , 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 hear ing, or t h at it was already part of the record, then we respectf ully reques t th at the [B]oard reconsi der its de cision tode ny respondents [sic] appeal for the reasons stated and under the authority cited in support of the Mot ion to Re open.” The purported basis for reopening the c as e was that the “fraudulent” conduct of the “uns crupulous individuals”— i.e. , Mr. Cama j and Ms. Muntean—caused

Mr. Sinistaj to submit false and misleading informationt o the Service , which se rved to un

dermine his credibi lity

in the ey es of the immigration judge and thereby prevented him from obtaining a fair hearing. The Immigration

and Naturalization Service opposed the motion.

OnAugust 19, 2002, the Board issued a written per curiam order deny ing Mr. Si

nistaj’s mo tion. The substance of the Board’s order focused

only upon

the issue of reopening, and did not explicit

ly a naly ze the issue

of reconsidera

ti on. With respect to the request for

reopening, the order explained that sucha request may

be granted only

when based upon material evidence that was unavailable at the prior hearing. The Boar d concluded

that because “[t]he assertions made by the responde nts were previously

available” and

t he respondents “had ampleop portunity

to pursue

their cla ims aga inst their former representatives on direct appea l,” reopening was “precluded.” This timely appeal followed.Nos. 02-4026/4027/4028 Sinistaj, et al. v. Ashcroft, et al. 5

1 Mr. Sinist aj arg u es that we should app ly the do ctrine o f equitab le tolli ng to excuse his delay in pre se nting hi s argument concerning Mr. Camaj and M s. Muntea n, though he co ncedes that this Court has never applied the do ctrine in th is typ e of situatio n. M r. Sinistaj h as failed to devel op thi s argumen t in any coherent manner, and we can discern no way in whi ch the doct

rine of eq uit ab le tolling co uld ap ply to en title him to reo pen ing of his c ase. II.

A.

Mr. Sinistaj first contests the Board’s denial of his re quest for reopening, which we review f or abuse of discretion. INS

v. Dohe rt y , 502 U.S. 3 14, 322-2 3 (1992). “The de cision to grant or deny a motion to reope n or recons ider 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
casefor relief.” 8 C.F.R. § 1003.2(a). “A motion to reopen procee dings shall not be granted ” unle ss it is based upon evidence that “is ma

terial a nd was not

availab le and could not have been discovered or presented at the f ormer hearing

. . . .” Id. at § 1003.2(c)(1). Mr. Sinistaj does n ot cha llenge the Board’s determination that the evidence concerning Mr. Ca maj and Ms. Munt ean , whichformed the basis of the request for reopenin g, was availab le at the time of the former hearing. F or tha t reason alone, the requirements for reopening have not been met. Id. Thus, Mr. Sinista

j has fail ed to demonstrate entitlement to the remedy of reopening, and the Boar d committed no abuse o f discr etion in so findi ng. 1

B. Mr. Sinistaj also challenges the fact that the Board denied his motion “to r

eopen or reconsi der” wit

h out explicitly 6 Sinistaj, et al. v. Ashcroft, et al. Nos. 02-4026/4027/4028

analyzing the issue of reconsideration. We find this argument unpersuasive as well.

Mr. Sinistaj filedone motion , sty led a motion “to reopen or reconsider,” and

the Board denied that motion. The fact that the Board did not explicitly analy ze the issue of reconsideration

is of no consequence – at leas t in this case, where Mr. Sinista

j failed t o comply with the require ments set forth in t he applicable regulations and, theref ore, was not entitled to reconsideration in any event.

Pursuant to 8 C.F.R. § 1 003.2(b), a motion for reconsideration

of a dec isi on b y the Boa rd must “state the
reasons for the motion by specify ing the errors of fact or

law inthe prior Board decision,” and must b e “supported by pertinent authority.” The r

eco nsider ation section of Mr. Sinistaj’s motion merely stated that “[i]f the Board f inds that reopening in this case is inappr op riate because the evidence should or could have been presented at the time of he aring, or that it was already

part of the record, then we respe c tful ly request that the [B]oard re c onsider its decision to deny respondents [sic] appeal for the reasons stated and under the
au thority cited in support of the Motion to Reopen.” Bu t nowhere in the motion—in the reope ning section or otherwise—was there a ny identification of “e rrors of fact or la w in the prior Board decision” that would warrant reconsi derati on. Id. The motion expounded upon the problem of “unsc rupulous individual s ” “de fraudin g immigra nts” and as se rted that Mr. Camaj and Ms. Muntean
were responsible for Mr. Sinistaj’s submission of f al se and inconsistentinforma

tio n to the Service, but it identified no factual or lega

l error com mitted by the Boar d. Indeed, the motion even conceded that the identified problems were “not due to the conduct of the Immig ration Judge . . . .”
Moreover, the only leg al authority cited in the motion was a string-cite of three cases

that purportedly dea

l with notions of “due process” an d “fund amental fairness,” but were notNos. 02-4026/4027/4028 Sinistaj, et al. v. Ashcroft, et al. 7

cited for any pr oposition related

to reconsideration and do not

r eveal any err

or committed by the Boa

rd in this case. Th

us , the case s cited do

not consti

tute “pe rtinent a uthority ” within the meaning of 8 C.F.R. § 1003.2(b).

Inshort, be cause

Mr. Sinistaj failed to meet the require ments for reconsider at ion, the Board committed no abuseof discr

etion in de

nyi ng his motion. See, e.g., Nocon v. INS, 789 F.2d

102 8, 1033 (3d Cir. 1986) (holding that because petitioner s’ motion for reconsideration failed to “stat e the reasons

for rec onsidera

tion” or c it e “pertinent case precedent,” “the Board was justified in deny ing the motion on this ground and cannot be said to have abu sed its discretion.”).

For these reasons, the petition for r ev iew of the Board’s decision is DENIED.