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
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 NOTAT..
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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
5
