2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2008

Vujicic v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4487

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-4487

___________

ZIVAN VUJICIC; DAVORKA VUJICIC,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

______________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A29 756 205; A70 866 762)

Immigration Judge: Honorable Annie S. Garcy

 

Submitted under Third Circuit LAR 34.1(a)

on October 15, 2008

Before: McKEE, NYGAARD and ROTH, Circuit Judges

(Opinion filed: November 14, 2008)

 

O P I N I O N

__________
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PER CURIAM

Zivan Vujicic is a native of Serbia. His wife, Davorka Vujicic is a native and citizen

of Slovenia. They entered the United States in 1989, with authorization to remain for six

months, but overstayed their admission period. In July 1994, the petitioners were charged

with deportability pursuant to former Immigration and Nationality Act (“INA”)

§ 241(a)(1)(B) [8 U.S.C. § 1231(a)(1)(B)]. They applied for asylum, withholding of

removal, and protection under the United Nations Convention Against Torture (“CAT”). The

Immigration Judge (“IJ”) denied relief. The Board of Immigration Appeals (“BIA”) affirmed

the IJ’s decision in May 1997. In January 2000, the petitioners filed a motion to reopen

based upon alleged changed country conditions. The BIA denied the motion on January 23,

2003. 

In September 2004, the petitioners moved the BIA to reissue its decision, alleging the

Board failed to mail notice of its January 2003 decision to their attorney’s new address. The

BIA denied the motion to reissue in January 2005, noting that the record did not contain a

change of address form, mail returned as undeliverable, or any evidence of administrative

error. The petitioners filed a petition for review, which we denied on April 6, 2006. See

Vujicic v. Attorney General, 173 Fed. Appx. 993 (3d Cir. 2006). In our opinion, we stated

that there is no reason why the BIA has an obligation to reissue a decision where it has

followed its own procedures. Here the Board has followed the procedures outlined in the
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regulations and practice manual by mailing notice of its decision to counsel’s address of

record-the address provided on the only Form EOIR-27 entered in petitioners’ file. Counsel

did not comply with the BIA’s procedure for address changes. He did not file an amended

Form EOIR-27, and further, he did not write to the BIA directly to advise them of his change

of address. Instead, he merely copied the Board on a change of address notice sent to the

petitioners. Given that petitioners’ counsel failed to properly change his address with the

BIA, it was his error that resulted in the failure to receive notice of the BIA decision.

Id. at 996. Accordingly, we concluded that the BIA was within in its discretion in denying

the petitioners’ motion to reissue. Id.

The petitioners filed another motion to reopen and reissue in May 2007. This motion

was based on Matter of Elezi, an unpublished BIA decision involving one of the petitioners’

counsel’s other clients. In Matter of Elezi, the BIA exercised its sua sponte authority to

reissue a decision that apparently had not been received by counsel. In November 2007, the

Board denied the petitioners’ motion to reopen and reissue, noting that Vujicic, 173 Fed.

Appx. 993, “is the binding law of the case and reflects there was no error in [the] denial of

the [first] motion [to reissue].” The Board further noted that Matter of Elezi has no binding

effect and involved “an error with the Clerk’s office in updating the file with a new address,”

a fact absent in the petitioners’ case. The BIA also declined to exercise its sua sponte

authority to reopen. Finally, the BIA found that the petitioners presented no evidence of

changed country conditions that would warrant an exception to the time and number
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limitations on motions to reopen. 

The petitioners, through counsel, filed a petition for review of the BIA’s decision.

The denial of a motion to reopen is reviewed for abuse of discretion. See Lu v. Ashcroft, 259

F.3d 127, 131 (3d Cir. 2001). As the Supreme Court has stated, the regulations “plainly

disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110 (1988). Thus, in order to succeed

on the petition for review, the petitioners must ultimately show that the discretionary decision

was somehow arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d

Cir. 1994).

The petitioners are essentially relitigating the issue raised and rejected in their prior

petition for review, namely, whether the BIA abused its discretion in denying their motion

to reissue its January 2003 decision. The only difference is that in this case the petitioners

rely on Matter of Elezi, a recent, unpublished BIA decision. In particular, the petitioners

argue that the BIA should reissue its prior decision because it granted a motion to reissue in

Matter of Elezi. But, as the Board noted, this case is distinguishable from Elezi. In Elezi,

the record indicated that the BIA had received a letter from counsel requesting that his

address be updated in records of the Clerk’s office. No such letter appears in the present

record. See Vujicic, 173 Fed. Appx. at 996 n.2 (distinguishing, on similar grounds, the case

of “another of counsel’s clients in which the Board agreed to reissue a decision that had been

mailed to counsel’s former address.”). Under these circumstances, we conclude that the BIA
 To the extent that the petitioners allege that the BIA incorrectly refused to sua sponte 1

reopen the proceedings, we lack jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472,

475 (3d Cir. 2003). There is also no error in the BIA’s determination that the petitioners’

motion to reopen is time- and number-barred, and that no exception to those limitations

exists. See 8 C.F.R. § 1003.23(b)(4)(i).

5

properly denied the petitioners’ motion to reopen and reissue. 

1

For the foregoing reasons, we will deny the petition for review.