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Tsetskhladze v. Holder, 10-2481-ag (2012)

Court: Court of Appeals for the Second Circuit Number: 10-2481-ag Visitors: 18
Filed: Apr. 18, 2012
Latest Update: Mar. 26, 2017
Summary: 10-2481-ag Tsetskhladze v. Holder BIA A099 928 130 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 NOTA
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         10-2481-ag
         Tsetskhladze v. Holder
                                                                                        BIA
                                                                               A099 928 130

                                  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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                    Circuit Judges.
11       _______________________________________
12
13       PAATA TSETSKHLADZE,
14                     Petitioner,
15
16                           v.                                 10-2481-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                     Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                   Paata Tsetskhladze, pro se,
24                                         Brooklyn, NY.
25
26       FOR RESPONDENT:                   Tony West, Assistant Attorney
27                                         General; William C. Peachey,
28                                         Assistant Director; Daniel E.
29                                         Goldman, Senior Litigation Counsel,
 1                           Office of Immigration Litigation,
 2                           United States Department of Justice,
 3                           Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 8   is DENIED.

 9       Paata Tsetskhladze, a native of the Soviet Union and a

10   citizen of Georgia, seeks review of a May 27, 2010, decision

11   of the BIA denying his motion to reopen and reconsider.        In

12   re Paata Tsetskhladze, No. A099 928 130 (B.I.A. May 27,

13   2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.     We

15   review the BIA’s denial of a motion to reopen or reconsider

16   for abuse of discretion.   See Jin Ming Liu v. Gonzales, 439

17 F.3d 109
, 111 (2d Cir. 2006); Kaur v. BIA, 
413 F.3d 232
, 233

18   (2d Cir. 2005) (per curiam).

19       The BIA did not abuse its discretion in denying

20   Tsetskhladze’s motion to reopen and reconsider. “A motion to

21   reopen proceedings shall not be granted unless it appears to

22   the Board that evidence sought to be offered is material and

23   was not available and could not have been discovered or

24   presented at the former hearing. . . .”   8 C.F.R. §



                                    2
 1   1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B).     As the

 2   BIA noted, Tsetskhladze did not establish that any of the

 3   evidence he submitted with his motion to reopen was

 4   previously unavailable.   See Norani v. Gonzales, 
451 F.3d 5
   292, 294 & n.3 (2d Cir. 2006) (looking to the date on which

 6   the immigration judge closed the record as the date before

 7   which the evidence must have been unavailable,

 8   undiscoverable, or unpresentable).   The other basis for

 9   Tsetskhladze’s motion to reopen was that he was eligible for

10   adjustment of status based upon his marriage to a lawful

11   permanent resident of the United States.   However,

12   Tsetskhladze was unable to show his prima facie eligibility

13   for adjustment of status, as he did not present any evidence

14   demonstrating that there was an immigrant visa immediately

15   available to him.   See 8 U.S.C. § 1255(a); INS v. Abudu, 485

16 U.S. 94
, 104-05 (1988) (the BIA may deny reopening for

17   failure to establish “a prima facie case for the underlying

18   substantive relief sought”). Consequently, the BIA did not

19   abuse its discretion in denying Tsetskhladze’s motion to

20   reopen based on his failure to present evidence that was not

21   available at the former hearing, and on his failure to

22   establish prima facie eligibility for relief.    See 8 C.F.R.


                                   3
 1   § 1003.2(c)(1); Abudu, 485 U.S. at 104-05; Kaur, 413 F.3d at

 2   233.

 3          Tsetskhladze presented to this Court in the first

 4   instance evidence that his wife recently became a United

 5   States citizen.    To the extent that Tsetskhladze’s wife’s

 6   naturalization affects his prima facie eligibility for

 7   adjustment of status, the proper forum to raise such a claim

 8   is in a motion to reopen with the BIA.     See 8 U.S.C.

 9   § 1252(b)(4)(A) (“the court of appeals shall decide the

10   petition only on the administrative record on which the

11   order of removal is based”); Xiao Xing Ni v. Gonzales, 494

12 F.3d 260
, 262 (2d Cir. 2007) (we “should not” exercise our

13   power to remand where “the basis for the remand is an

14   instruction to consider documentary evidence that was not in

15   the record before the BIA”).

16          “A motion to reconsider shall state the reasons for the

17   motion by specifying the errors of fact or law in the prior

18   Board decision and shall be supported by pertinent

19   authority.”    8 C.F.R. § 1003.2(b)(1).   Tsetskhladze did not

20   argue any specific errors of law or fact which would warrant

21   reconsideration.    See Jin Ming Liu, 439 F.3d at 111 (the BIA

22   does not abuse its discretion by denying a motion to


                                    4
 1   reconsider where the motion merely repeats arguments that

 2   the BIA has previously rejected).    Accordingly, the BIA did

 3   not abuse its discretion in denying Tsetskhladze’s motion to

 4   reconsider.

 5       For the foregoing reasons, the petition for review is

 6   DENIED.   As we have completed our review, any stay of

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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Source:  CourtListener

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