United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-4094

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Vitalik K. Boudaguian; Ofelia R. *

Boudaguian; Khristofor V. * 

Boudaguian; Kristina V. Boudaguian, *

*

Petitioners, * Petition for Review of an

* Order of the Board of

v. * Immigration Appeals.

*

John D. Ashcroft, Attorney General *

of the United States, *

*

Respondent. *

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Submitted: February 10, 2004

Filed: July 22, 2004 

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Before LOKEN, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.

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LOKEN, Chief Judge.

Vitalik Boudaguian and his wife Ofelia are ethnic Armenians who were born

in Azerbaijan and who moved in 1982 to another republic of the Soviet Union,

Latvia, after Vitalik completed his Soviet military obligation and received a degree

from a college in Yerevan, Armenia. The Boudaguians’ two children, Khristofor and

Khristina, were born in Latvia. The four family members entered the United States

from Latvia in 1995, overstayed their tourist visas, and applied for asylum and
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withholding of removal, contending that, as Russian-speaking ethnic Armenians, they

faced constant discrimination, mistreatment, and persecution by Latvians after Latvia

declared its independence from the Soviet Union. See 8 U.S.C. §§ 1158(b)(1);

1231(b)(3).

The Immigration Judge (IJ) denied the Boudaguians asylum and withholding

of removal and granted them voluntary departure. See 8 U.S.C. § 1229c(b). After the

BIA dismissed their appeal of the IJ’s decision, the Boudaguians moved to reopen.

Treating the motion as one to reconsider and to reopen, the BIA denied the motion,

concluding that it neither demonstrated error in the BIA’s previous decision nor met

the heavy burden governing the reopening of applications for asylum and withholding

of removal. The Boudaguians petition this court for judicial review of the BIA’s

denial of their motion to reopen. We conclude the BIA did not abuse its discretion

and deny their petition for review.

1. Much of the Boudaguians’ brief on appeal is devoted to persuading us that

the BIA erred in initially upholding the IJ’s denial of asylum and withholding of

removal. In Stone v. I.N.S., 514 U.S. 386, 398-401, 405-06 (1995), the Supreme

Court held that Congress, in amending the Immigration and Nationality Act, intended

to depart from the normal rule that the timely filing of a motion to reconsider tolls the

time for appeal of the underlying order until the agency rules on the motion to

reconsider. Therefore, an order denying relief from deportation (now called removal)

is final when issued and must be appealed within the statutorily prescribed period.

Following Stone, Congress substantially rewrote the statute in the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996. But the wording of the relevant

judicial review provision is the same. Compare 8 U.S.C. § 1252(b)(6), with 8 U.S.C.

§ 1105a(a)(6) (1990). Accordingly, we lack jurisdiction to review the BIA’s initial

order because the Boudaguians did not file a timely petition for review of that order.

See Raffington v. I.N.S., 340 F.3d 720, 724 (8th Cir. 2003). Our jurisdiction is

limited to review of the BIA order denying the Boudaguians’ motion to reconsider its
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initial decision or to reopen the asylum proceedings. We review such orders for

abuse of discretion. See 8 C.F.R. § 1003.2(a); Nativi-Gomez v. Ashcroft, 344 F.3d

805, 807 (8th Cir. 2003). 

2. Before the BIA, the Boudaguians’ motion to reopen primarily argued that

the evidence previously submitted to the IJ established that they suffered past

persecution and have a well-founded fear of future persecution in Latvia. Treating

this part of the motion as a motion to reconsider, the BIA denied it “because the

[Boudaguians] have not demonstrated any error in our decision of June 26, 2002, on

the record then before us, upon consideration of the contentions in the motion.” 

The applicable regulation provides that a motion asking the BIA to reconsider

an adverse decision “shall state the reasons for the motion by specifying the errors of

fact or law in the prior Board decision and shall be supported by pertinent authority.”

8 C.F.R. § 1003.2(b)(1). In reviewing the denial of a motion to reconsider, “we will

find an abuse of discretion if the denial was made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible basis

(such as race).” Zhang v. I.N.S., 348 F.3d 289, 293 (1st Cir. 2003) (quotation

omitted). This is not a case like De Jimenez v. Ashcroft, 370 F.3d 783, 790 (8th Cir.

2004), where the petitioner’s motion to reconsider established that the BIA’s prior

decision had misapplied BIA precedent in refusing to consider petitioner’s evidence.

Here, the Boudaguians’ motion simply reargued whether the evidence established the

requisite persecution.

We decline the Boudaguians’ invitation to consider whether the BIA’s initial

order was correct in deciding whether the agency’s denial of a motion to reconsider

was an abuse of discretion. This level of review would be contrary to the Supreme

Court’s decision in Stone and would encourage aliens to improperly prolong the

removal process by filing motions to reconsider, instead of petitioning for immediate

judicial review of an initial adverse decision. Thus, there was no abuse of discretion.
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3. The Boudaguians’ motion to reopen also presented additional evidence

supporting their claim that they are not eligible to become naturalized Latvian

citizens, and tending to confirm that unknown Latvian assailants committed acts of

violence on members of the Boudaguian family in 1994 and 1995. The BIA treated

this part of the motion as a motion to reopen. The applicable regulation provides that

a motion to reopen “shall state the new facts that will be proven at a hearing to be

held if the motion is granted and shall be supported by affidavits or other evidentiary

material.” The motion may not be granted unless the new evidence “is material and

was not available and could not have been discovered or presented at the former

hearing.” 8 C.F.R. § 1003.2(c)(1). The BIA denied the motion to reopen, explaining:

We have considered the contentions in the present motion, including

that the [Boudaguians] are ineligible for citizenship in Latvia. With the

motion, the respondents have forwarded materials pertaining to Latvian

citizenship requirements and affidavits from two neighbors concerning

an incident in which a smoke bomb was thrown at the [Boudaguians’]

home for an unknown reason. The [Boudaguians] also have resubmitted

several items that we already evaluated in the context of the prior appeal

. . . . A motion to reopen is not a substitute for an appeal. It is not to be

used as an opportunity for a second effort at proving factual allegations.

By means of the assertions in the motion and the accompanying

documents, the [Boudaguians] have failed to satisfy the heavy

evidentiary burden relevant to reopening.

(Citations omitted.) 

Motions to reopen are disfavored, especially in removal proceedings. See

Khalaj v. Cole, 46 F.3d 828, 834 (8th Cir. 1995). On appeal, the Boudaguians argue

that the BIA abused its discretion by refusing to consider new evidence that they are

ineligible for Latvian citizenship. We disagree. First, the BIA expressly stated that

it considered the new evidence. Second, citizenship issues were carefully considered

by the IJ and by the BIA in the first appeal. Newly independent Latvia faces serious
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issues regarding the rights of long-standing permanent residents who are not ethnic

Latvians, and whether those non-citizens will be eligible for Latvian citizenship. In

its first decision upholding the IJ’s findings that the Boudaguians did not suffer past

persecution and did not prove a well-founded fear of future persecution in Latvia, the

BIA observed that Vitalik Boudaguian “would be able to apply for Latvian

citizenship starting in 2003.” The motion to reopen did not establish that was an error

of fact, only that the Boudaguians may not qualify for citizenship because, for

example, they do not presently speak the Latvian language. As this evidence does not

undermine the essential findings that the Boudaguians failed to prove the requisite

well-founded fear of persecution, the BIA did not abuse its discretion in concluding

that the Boudaguians “have failed to satisfy the heavy evidentiary burden relevant to

reopening.”

4. At oral argument, the Boudaguians requested reinstatement of the thirty-day

period of voluntary departure granted by the BIA in its initial decision of June 26,

2002. The applicable regulation provides that the filing of a motion to reopen “shall

not stay the execution of any decision made in the case . . . unless a stay of execution

is specifically granted.” 8 C.F.R. § 1003.2(f). As the BIA granted no such stay, the

thirty-day voluntary departure period expired well before the Boudaguians filed this

petition for judicial review. Assuming we have the authority under IIRIRA to

reinstate an expired grant of voluntary departure, which we doubt, we decline to do

so because the Boudaguians did not timely seek a stay from this court. See Rife v.

Ashcroft, No. 03-2127, 2004 WL 1496971, at *8 (8th Cir. July 7, 2004).

For the foregoing reasons, we deny the Boudaguians’ petition for review in all

respects.

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