United States Court of Appeals

For the First Circuit

No. 05-1069

KATE ASEMOTA,

Petitioner,

v.

ALBERTO GONZALES, 

Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Lynch, and Lipez, Circuit Judges.

Sam Osagiede and Sam Osagiede & Associates on brief for

petitioner.

Jennifer C. Boal, Assistant United States Attorney, and

Michael J. Sullivan, United States Attorney, on brief for

respondent.

August 25, 2005
 On March 1, 2003, the relevant functions of the INS were 1

transferred to the Department of Homeland Security, and the INS

subsequently ceased to exist. See Homeland Security Act of 2002,

Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as

amended at 6 U.S.C. § 291(a)).

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LYNCH, Circuit Judge. This is a petition for review of

a December 17, 2004 order of the Board of Immigration Appeals (BIA)

denying a motion under 8 C.F.R. § 1003.2 to reconsider its order of

July 15, 2004. The July 15 order affirmed and adopted an

Immigration Judge's (IJ's) decision denying petitioner's

application for asylum, withholding of removal, and relief under

the Convention Against Torture (CAT). In addition, the July 15

order affirmed the IJ's decision not to grant a continuance,

rejected the claim that the IJ had not given petitioner an

impartial and fair hearing, and noted that evidence proffered to

the BIA on appeal was neither new nor previously unavailable. The

BIA refused to revisit the July 15 decision, stating in its

December 17 order that petitioner had not met the requirements for

a motion to reconsider. Because the December 17 order did not

constitute an abuse of discretion, we deny the petition for review.

I. 

Petitioner Kate Asemota is a native and citizen of

Nigeria. In February 2002, she applied for asylum, withholding of

removal, and relief under the CAT. In April of that year, the

former INS initiated removal proceedings against Asemota. On the 1

very day the hearing on asylum and removal was to occur, Asemota
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requested a continuance. The IJ denied this request and denied

Asemota's application for relief.

Asemota timely appealed to the BIA, which adopted and

affirmed the IJ's decision. Asemota then timely filed a motion for

reconsideration of that order. On December 17, 2004, the BIA

denied that motion. This timely petition for review of the BIA's

denial of the motion to reconsider followed.

II. 

Asemota makes some arguments that could be construed as

an attempt to attack the BIA's July 15, 2004 order. She failed to

timely petition for review of that order, so we lack jurisdiction

to review it. See 8 U.S.C. § 1252(b)(1) (petitions for review of

final orders of removal must be filed within 30 days); Ven v.

Ashcroft, 386 F.3d 357, 359-60 (1st Cir. 2004) ("A motion to reopen

or reconsider does not toll the period for filing a petition for

judicial review of the underlying order of deportation; in

immigration cases the time to appeal denial orders continues to run

despite the filing of motions to reopen or reconsider the denial of

asylum, withholding of removal, and protection under the CAT.").

Thus, the only issue before us is the denial of the motion to

reconsider.

Under 8 C.F.R. § 1003.2, a party filing a motion to

reconsider must "specify[] the errors of fact or law in the prior

Board decision" and must support the claim of error with "pertinent
 In her brief to this court, petitioner nowhere challenges the 2

three-pronged test applied by the BIA in deciding whether to grant

her motion to reconsider. Rather, she argues that the BIA "failed

to adhere to its own precedents, and did not provide any reasoning

for departing from those policies and precedents." The BIA clearly

applied its own precedent, Matter of Cerna, in denying the motion

to reconsider. The BIA has applied this same three-prong test in

other cases. See Sousa v. Ashcroft, 393 F.3d 271, 274-75 (1st Cir.

2005). As there was no departure from precedent and petitioner has

not challenged that precedent, the only question is whether the BIA

abused its discretion in the manner in which it applied the

requirements. As we explain in the text, it did not.

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authority." 8 C.F.R. § 1003.2(b)(1). Under BIA precedent, a party

filing a motion to reconsider must present additional legal

arguments, a change of law, or an argument or aspect of the case

that was overlooked. See Matter of Cerna, 20 I. & N. Dec. 399, 403

n.2 (BIA 1991). Even if the prerequisites for reconsideration are 2

met, the BIA has discretion to deny the motion. 8 C.F.R.

§ 1003.2(a).

Our review of the BIA's denial of petitioner's motion to

reconsider is for abuse of discretion. See INS v. Doherty, 502

U.S. 314, 323-24 (1992); Ven, 386 F.3d at 360. We will find an

abuse of discretion only where the "the denial was made without a

'rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis' (such as race)."

Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) (quoting Nascimento

v. INS, 274 F.3d 26, 28 (1st Cir. 2001) (internal quotation marks

omitted)). 

We have reviewed the arguments made by Asemota in her

motion to reconsider before the BIA. Asemota urged the BIA to
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reconsider two things: first, its affirmance of the IJ's denial of

the continuance, and second, its refusal to reverse the IJ's asylum

decision on the grounds of the IJ's "combative role." The BIA

denied Asemota's motion on the ground that it met none of the

prerequisites for the granting of a motion to reconsider. We

agree.

As to the denial of the continuance, Asemota's motion

fails to satisfy any of the three requirements embodied in BIA

precedent and not challenged by petitioner: first, it does not

present additional legal arguments, but merely reiterates ones made

in petitioner's earlier appeal to the BIA; second, it does not

mention any change of law; and third, it does not suggest that any

argument or aspect of the case was overlooked. There was thus no

abuse of discretion in the BIA's denial of the motion to

reconsider.

The "combative role" claim fails for similar reasons.

This portion of the motion fails the BIA's unchallenged three-prong

test for motions to reconsider: first, at most Asemota reargued

previously argued points; second, she mentioned no change of law;

and third, she did not suggest that any argument or aspect of the

case was overlooked. Asemota's motion to reconsider highlights

portions of the transcript that in her view showed improper conduct

by the IJ, but the BIA had thoroughly addressed the "combativeness"

issue -- and the lack of support for it in the record -- in its
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July 15, 2004 decision. Therefore, as with the continuance issue,

there was no abuse of discretion in the BIA's denial of the motion

to reconsider. 

Asemota's attempts in her brief to this court to present

a new claim that "the BIA interfered with [her] right to a reasoned

opinion" are unexhausted, and so not before us, and in any event

frivolous.

III. 

We deny the petition for review.