11-1168-ag
         Albanil v. Holder
                                                                                       BIA
                                                                               A027 932 461
                              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 27th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _______________________________________
12
13       MARIA DEL CARMEN ALBANIL,
14                Petitioner,
15
16                           v.                                 11-1168-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Lawrence Spivak, Jackson Heights,
24                                     New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Andrew B.
29                                     Insenga, Trial Attorney, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Maria del Carmen Albanil, a native and

 6   citizen of Honduras, seeks review of a February 24, 2011,

 7   order of the BIA denying her motion for reconsideration.        In

 8   re Maria del Carmen Albanil, No. A027 932 461 (B.I.A. Feb.

 9   24, 2011).    We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

11       We review the BIA’s denial of a motion for

12   reconsideration for abuse of discretion.     See Jin Ming Liu

13   v. Gonzales, 

, 111 (2d Cir. 2006).     The BIA

14   denied Albanil’s motion because it concluded that, rather

15   than identifying any errors of fact or law in its previous

16   decision, it reasserted the same claims she had raised on

17   appeal.     See 8 C.F.R. § 1003.2(b)(1) (“A motion to

18   reconsider shall state the reasons for the motion by

19   specifying the errors of fact or law in the prior Board

20   decision and shall be supported by pertinent authority”).

21   Albanil’s opening brief does not challenge that conclusion;

22   instead it argues that the BIA erred in its underlying

23   decision.    We do not have jurisdiction to review that

                                     2
 1   decision.     See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

 

, 89-90 (2d Cir. 2001).      Accordingly, Albanil has

 3   waived any challenge to the BIA’s decision denying

 4   reconsideration.     See JP Morgan Chase Bank v. Altos Hornos

 5   de Mexico, 

, 428 (2d Cir. 2005) (“[A]rguments

 6   not made in an appellant’s opening brief are waived even if

 7   the appellant . . . raised them in a reply brief.”).       While

 8   we have discretion to excuse such an error if manifest

 9   injustice would otherwise result, see id., this case does

10   not warrant such an exercise of discretion as the BIA in any

11   case did not abuse its discretion in denying

12   reconsideration.

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23




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