13-3734

Anthony v. Lynch

BIA

A088 437 743

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 22nd day of September, two thousand fifteen.

PRESENT:

GERARD E. LYNCH,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

ROBELTO FELICIANO JOSE ANTHONY,

AKA ANTHONY ROBERTO,

Petitioner,

v. 13-3734

LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: DANIEL P. WEICK (Jonathan M. Jacobson on the brief),

Wilson Sonsini Goodrich & Rosati, P.C., New York, NY. 

 

FOR RESPONDENT: DAWN S. CONRAD, Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division (Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division;

Mary Jane Candaux, Assistant Director, Office of

Immigration Litigation on the brief), United States

Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED.

Petitioner Robelto Feliciano Jose Anthony, a native and citizen of Trinidad and

Tobago, seeks review of a September 9, 2013 decision of the BIA denying his motion to

reopen. In re Robelto Feliciano Jose Anthony, No. A 088 437 743 (B.I.A. Sept. 9, 2013). 

We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See,

e.g., Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156–57 (2d Cir. 2005). The BIA’s

primary reason for denying Anthony’s motion to reopen was its conclusion that Anthony

had been given sufficient opportunity to allow his wife to file a visa petition (the I-130)

on his behalf while his case was pending before the immigration court. It was within the

BIA’s discretion to deny Anthony’s motion to reopen on this basis. Because we find this

reason sufficient to deny Anthony’s petition for review, we need not address whether the

other reasons given by the BIA were correct.

The Supreme Court has made clear that “motions to reopen are disfavored in

deportation proceedings,” INS v. Abudu, 485 U.S. 94, 107 (1988), noting that the

standards applicable to such motions

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are comparable to those that apply to petitions for rehearing, and

to motions for new trials on the basis of newly discovered

evidence. There is a strong public interest in bringing litigation

to a close as promptly as is consistent with the interest in giving

the adversaries a fair opportunity to develop and present their

respective cases . . . . If INS discretion is to mean anything, it

must be that the INS has some latitude in deciding when to

reopen a case. The INS should have the right to be restrictive.

Id. at 107-08 (internal quotation marks, citations, and footnotes omitted); see also INS v.

Doherty, 502 U.S. 314, 323 (1992); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). 

The BIA’s denial of Anthony’s motion to reopen did not exceed its discretion. For

almost fourteen months, Anthony was on actual notice that he could be entitled to relief

from deportation if his United States citizen wife filed a visa petition on his behalf and he

submitted evidence of such petition to the immigration court, having been so advised by

the immigration judge (“IJ”) on November 30, 2011. During that period, the immigration

court continued Anthony’s case several times to give his wife the opportunity to file the I130 visa petition. Even after the final deadline set by the IJ for the filing of the petition

had passed, because Anthony’s wife had incorrectly attempted to file the petition with the

immigration court rather than with the United States Citizenship and Immigration

Service, the IJ granted another continuance and provided Anthony with the proper

address for filing. When Anthony next appeared before the immigration court, and there

was still no proof that his wife had properly filed the I-130 on his behalf, the court

granted yet another continuance and explained to Anthony: “This is the final opportunity

you have to get proof to the Court that your wife has filed a visa petition for you. Do you

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understand?” Anthony replied, “Yes, sir.” Admin. Record at 173-74. After the passage

of three more months, the IJ concluded that the I-130 petition had been abandoned.

Anthony, however, had still more time to provide proof that an I-130 petition on

his behalf had been filed. His release from prison, and transfer to the custody of the

Department of Homeland Security, resulted in the transfer of his case to a different

immigration judge, which, as the original IJ advised him, “buys you a little bit more time

to get in touch with your wife to make sure that she gets this visa petition filed.” 

Anthony’s removal proceedings were finally terminated on January 22, 2013, when he

still had not provided any proof that his wife had filed the I-130 visa petition on his

behalf. The I-130 petition was filed while Anthony’s appeal to the BIA was pending. 

Anthony did not provide evidence of that filing to the BIA until after his appeal had been

denied, in connection with the instant motion to reopen. Under these circumstances, the

BIA did not abuse its discretion in denying Anthony’s motion to reopen. Accordingly,

we DENY Anthony’s petition for review.

We note our gratitude to pro bono counsel for their willingness to serve and for the

high professional skills they have devoted to this case. 

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court

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