2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-1-2011

Hacer Cakmakci v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1452

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1452

___________

HACER CAKMAKCI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A097-521-211)

Immigration Judge: Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 12, 2011

Before: AMBRO, GREENAWAY, JR., and GREENBERG, Circuit Judges

(Opinion filed: December 1, 2011)

___________

OPINION

___________

PER CURIAM
2

Hacer Cakmakci has filed a petition for review of an order of the Board of 

Immigration Appeals (“BIA”) denying her motion to reopen her removal proceedings. 

For the reasons that follow, we will deny the petition for review.

Because the parties are familiar with the background, we will present it in brief 

summary. Cakmakci is a native and citizen of Turkey. She entered the United States in 

April 2005 without valid travel documents, and she was placed into removal proceedings. 

In her removal proceedings, she appeared pro se and filed an application for asylum, 

withholding of removal, and relief under the Convention Against Torture (“CAT”). After 

an evidentiary hearing on April 19, 2006 and closing arguments on May 9, 2006, the IJ 

found Cakmakci to be not credible, denied all relief, and ordered her removal. Cakmakci 

appealed through counsel. On May 12, 2008, the BIA affirmed and adopted the IJ’s 

decision. The BIA noted that no appellate brief was filed, and no documentary evidence 

was submitted to support Cakmakci’s new claim of mental incompetence. The BIA also 

concurred with the IJ’s finding that, even if credible, Cakmakci failed to meet her burden 

of proof for her claims. In June 2008, Cakmakci filed a pro se motion to reconsider and 

reopen, arguing that appellate counsel was ineffective and that she could not present her 

story at the hearing before the IJ because of tremendous pressure. On October 31, 2008, 

the BIA construed the motion as a motion to reopen and denied the motion. The BIA 

concluded that, aside from the ineffective assistance of counsel issue, Cakmakci 

presented nothing to establish her prima facie eligibility for asylum, withholding or 

removal, or CAT relief if her proceedings were reopened.
3

Cakmakci filed a petition for review of the BIA’s denial of her motion to reopen. 

We denied the petition for review, concluding that the BIA did not commit an abuse of 

discretion. We also noted that we lacked jurisdiction to review Cakmakci’s due process 

claim and claim of incompetence at her hearing before the IJ, because she did not file a 

timely petition for review of the BIA’s May 12, 2008 decision affirming and adopting the 

IJ’s May 9, 2006 decision. Cakmakci v. Att’y Gen., C.A. No. 08-4628, slip op. at 4-5 (3d 

Cir. Apr. 15, 2010).

In May 2010, Cakmakci filed another motion to reopen with the BIA. She raised a 

new claim of feared persecution in Turkey based on her discovery of her Jewish heritage 

and on her practice of Orthodox Judaism. On January 19, 2011, the BIA denied the 

motion to reopen. The BIA noted that the motion was untimely and number-barred under 

applicable law. Further, the BIA determined that Cakmakci did not qualify for an 

exception to the ninety-day filing rule, stating that she had not shown that information 

relating to her claim could not have been discovered or presented at the hearing before 

the IJ in May 2006, and that she had not shown that conditions in Turkey have changed 

materially since the hearing.

This petition for review followed. We have jurisdiction pursuant to 8 U.S.C. 

§ 1252 to review the BIA’s denial of Cakmakci’s motion to reopen, and we apply the 

abuse of discretion standard to our review. See Sevoian v. Ashcroft, 290 F.3d 166, 174 

(3d Cir. 2002). Thus, to succeed on her petition for review, Cakmakci must show that the 

BIA’s decision was somehow arbitrary, irrational, or contrary to law. See id.
4

Cakmakci makes no such showing here. In fact, she presents no argument at all in 

her brief regarding the BIA’s January 19, 2011 denial of her motion to reopen. We thus 

deem any challenge to that decision to be waived. See Dwumaah v. Att’y Gen., 609 F.3d 

586, 589 n.3 (3d Cir. 2010) (citing Lie v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005)).

Cakmakci’s arguments in her brief solely concern the merits of the IJ’s May 2006 

decision denying her application for withholding of removal and the BIA’s May 2008 

decision affirming and adopting the IJ’s decision. As we noted in Cakmakci’s prior 

petition for review, we lack jurisdiction to review her arguments relating to these

underlying agency decisions because she did not file a timely petition for review of those 

decisions. See 8 U.S.C. ' 1252(b)(1); Stone v. Immigration & Naturalization Serv., 

514 U.S. 386, 405 (1995).

We will deny the petition for review.