Filed: Oct. 03, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-3-2006 Gebra v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4591 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Gebra v. Atty Gen USA" (2006). 2006 Decisions. Paper 369. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/369 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-3-2006 Gebra v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4591 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Gebra v. Atty Gen USA" (2006). 2006 Decisions. Paper 369. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/369 This decision is brought to you for free and open access by the Opinions of th..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-3-2006
Gebra v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4591
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Gebra v. Atty Gen USA" (2006). 2006 Decisions. Paper 369.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/369
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 05-4591
_________________
ADEL RAGEIB GEBRA,
Petitioner
v.
ALBERTO GONZALES, Attorney General of the United States,
Respondent
________________
On Petition for Review of an Order of
the Board of Immigration Appeals
________________
Submitted Under Third Circuit LAR 34.1(a)
September 29, 2006
________________
Before: MCKEE and AMBRO, Circuit Judges, and
RESTANI*, Judge
(Filed: October 3, 2006)
_______________
OPINION
_______________
________________________
*Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.
Adel Rageib Gebra (“Gebra”) petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying Gebra’s second motion to reopen deportation
proceedings based upon numerical limitations. We will deny the petition.
I. Procedural and Factual Background
On November 15, 1992, Gebra, a native and citizen of Egypt, entered the United
States as a non-immigrant visitor. On February 9, 1993, Gebra filed an application for
asylum and withholding of removal, claiming that he would face persecution for his religious
beliefs if he returned to Egypt. Gebra claims that he practiced Coptic Christianity in Egypt
and remains a Coptic Christian today. On November 25, 1998, the immigration judge (“IJ”)
denied the asylum application, finding that Gebra was not a credible applicant for asylum and
that his fear of future persecution was not well-founded. The IJ granted Gebra voluntary
departure within 60 days. On December 8, 1998, Gebra filed a notice of appeal of the IJ’s
decision before the BIA, arguing that the IJ had imposed an incorrect standard of review and
was predisposed to discredit him. On July 16, 2002, the BIA affirmed the IJ’s decision
without opinion and granted Gebra voluntary departure within 30 days. Gebra did not depart.
Instead, almost three years later on February 11, 2005, Gebra filed a motion to reopen
removal proceedings with the BIA based upon “changed country conditions” pursuant to 8
C.F.R. § 1003.2(c)(3)(ii). In support of his application, he submitted the Ninth Circuit
opinion, Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004), in which a petition for review of
a BIA order was granted on the basis of changed circumstances in Egypt. He also included
2
a twenty-two page affidavit from Paul Marshall, a senior fellow at the Center for Religious
Freedom, describing a rise in violence in Egypt since September 11, 2001, directed against
Coptic Christians by Islamic extremists. On March 22, 2005, the BIA denied Gebra’s
untimely motion to reopen, stating that the Ninth Circuit case was not binding authority, that
Gebra had not presented new evidence with respect to his own personal circumstances in
Egypt, and that the new evidence presented, while material, did not establish prima facie
eligibility for relief so as to warrant reopening of removal proceedings.
Gebra did not petition for review of the BIA’s denial of the motion to reopen. Rather,
on June 23, 2005, Gebra filed a second motion to reopen with the BIA, again alleging
changed country conditions. Gebra supported his motion with a copy of Malty, a nearly
identical affidavit from Marshall, and a brief letter from the American Coptic Association.
On September 19, 2005, the BIA denied the second motion to reopen, stating that the motion
was numerically barred and that Gebra did not meet any of the statutory exceptions to the
numerical restrictions on motions to reopen.
Gebra petitions for review of the BIA’s denial of his second motion to reopen, arguing
that the evidence presented in it established a change in country conditions to fulfill one of
the statutory exceptions to the numerical restriction on successive motions to reopen.1
1
Gebra also argues that the IJ erred in making an adverse credibility finding as to
Gebra’s original asylum and withholding application. Because Gebra has not filed a
timely petition for review of the initial removal order, we do not have jurisdiction to
review that decision. See Stone v. INS, 514 U.S. 386, 394–405 (1995) (holding that the
deadline for appealing a final removal order is not tolled by a later filed motion to reopen
or reconsider); Nocon v. INS,
789 F.2d 1028, 1033–34 (3d Cir. 1986) (holding that the
3
II. Discussion
We have jurisdiction pursuant to 8 U.S.C. § 1252(b)(2) (2000). We review the denial
of a motion to reopen for abuse of discretion. INS v. Abudu, 485 U.S. 94, 105 (1998). We
uphold the BIA’s decision to deny a motion to reopen unless the BIA’s decision is “arbitrary,
irrational, or contrary to law.” Tipu v. INS,
20 F.3d 580, 582 (3d Cir. 1994).
An alien has the right to file “only one motion to reopen deportation or exclusion
proceedings,” whether before the BIA or IJ. 8 C.F.R. § 1003.2(c)(2) (emphasis added). This
numerical limitation does not apply, however, if an alien bases his petition to reopen upon
“changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available and could
not have been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). Here,
the BIA concluded that Gebra did not meet any of the exceptions to the numerical restriction
on successive motions to reopen and denied the motion as numerically barred under 8 C.F.R.
§ 1003.2(c)(2).
Gebra asserts that the BIA abused its discretion in denying his second motion to
reopen and that the evidence presented in his second motion to reopen established a change
in country condition. As previously discussed, Gebra supported his second motion by
submitting Malty, a revised affidavit from Marshall, and a brief letter from the American
Coptic Association. Preliminarily, Malty, and much of information in Marshall’s revised
court has no jurisdiction to review a petition for review of a removal order submitted after
the filing deadline).
4
affidavit, were already submitted to the BIA in Gebra’s first motion to reopen. The BIA
reviewed this evidence and held that it did not establish prima facie eligibility for relief.
Because Gebra has not filed a timely petition for review of this decision, we have no
jurisdiction to review it to determine whether the BIA abused its discretion in denying his
first motion based upon the evidence presented. See 8 U.S.C. § 1252(b)(1) (stating that a
petition for review must be filed no later than 30 days after the date of a final order of
removal); see also Nocon, 789 F.2d at 1033 (holding that “strict compliance with the
statutory directive is a jurisdictional prerequisite to judicial review”). We instead focus upon
the additional information presented in support of Gebra’s second motion to reopen.
Here, the additional information presented in Gebra’s second motion to reopen, the
letter from the American Coptic Association, and the minimal additions to Marshall’s
affidavit, are not new information that was previously unavailable and do not establish a
change in country conditions in Egypt. As to the letter from the American Coptic
Association, it merely states Gebra’s former occupation in Egypt as a photographer, his
involvement in the Coptic Church in Egypt, and his membership in the American Coptic
Association since his arrival in the United States. J.A. 49–50. This information was
available at the time of Gebra’s asylum hearing. In fact, information about Gebra’s
occupation and involvement in the Coptic Church in Egypt was already presented at Gebra’s
asylum hearing.
The additional information contained in Marshall’s revised affidavit also does not
compel a different outcome in this case. The majority of the additions to Marshall’s affidavit
5
are statements of Marshall’s belief that Gebra would face persecution if he returned to Egypt.
Marshall, however, states that he is not personally acquainted with Gebra and that he bases
his belief upon his review of Gebra’s “plausible” statement and asylum application. J.A.
34–35. Given that the IJ made an adverse credibility determination after reviewing Gebra’s
asylum application and holding an asylum hearing, we give little weight to Marshall’s
personal assessment.
Marshall’s revised affidavit also contains brief descriptions of three more acts of
violence in Egypt in 2005: a bombing of a tourist area in Cairo, J.A. 34, an attack upon a
Coptic social service center, J.A. 32, and an abduction of a nineteen-year old Coptic girl, id.
First, the bombing of a tourist area does not relate directly to the conditions faced by a Coptic
Christian. Second, the brief description of two other attacks in Egypt does not significantly
add to the information already examined by the BIA in Gebra’s first motion to reopen. Thus,
we hold that the BIA did not abuse its discretion in ruling that this evidence is not sufficient
to qualify under any of the statutory exceptions to the limit upon successive motions to
reopen.
Accordingly, we will DENY the petition for review.
6
