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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

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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 equitable

tolling to excuse his delay in presenting his argument concerning Mr.

Camaj and Ms. Muntean, though he concedes that this Court has never

applied the doctrine in this type of situation. 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 could apply 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

becausepetitioners’ 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.