Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2007

Durant v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4444




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-4444


                          MARTIN STANFORD DURANT,
                                          Petitioner

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES;
          SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
         BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT;
                 THEODORE NORDMARK, DIST. DIR. ICE,
                                     Respondents


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                              Agency No. A45-308-927
                   Immigration Judge: Honorable Charles Honeyman


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 29, 2007


      Before: BARRY, ROTH, Circuit Judges, and DEBEVOISE,* District Judge

                          (Opinion Filed: February 7, 2007)


                                      OPINION




  *
   The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
BARRY, Circuit Judge

       Martin Stanford Durant appeals from an order of the Board of Immigration

Appeals (“BIA”) denying his motion to reconsider. We will affirm.

                                             I.

       On September 13, 1999, Durant, a Guyanese citizen, was convicted in the Superior

Court, County of New Castle, State of Delaware, for making terroristic threats in

violation of title 11, section 621 of the Delaware Code. On May 16, 2002, an

immigration judge (“IJ”) determined that making terroristic threats qualifies as a crime of

violence, as defined in 18 U.S.C. § 16(a), and therefore found Durant to be removable

under 8 U.S.C. § 1227(a)(2)(A)(iii).

       Durant appealed to the BIA. On August 4, 2004, the BIA affirmed without

opinion. Instead of filing in this Court a petition for review of the BIA’s August 4, 2004

decision, Durant filed a motion to reconsider with the BIA. On October 27, 2004, the

BIA denied the motion to reconsider, stating that it had already considered Durant’s

arguments. This petition for review followed.

                                            II.

       As an initial matter, we must make clear precisely what we can review. As we

have noted, Durant did not file a petition in this Court to review the BIA’s August 4, 2004

affirmance but, instead, filed a motion to reconsider with the BIA. Accordingly, if we

have jurisdiction, we may only review the BIA’s October 27, 2004 order denying the


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motion to reconsider; our review does not extend to the underlying order of removal. See

Stone v. INS, 

, 394 (1995).

       We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(2)(D),

and we review for abuse of discretion. Borges v. Attorney Gen., 

, 404 (3d

Cir. 2005).1

       A motion to reconsider must “specify the errors of law or fact in the previous order

and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). Section

1003.2(a) provides that the “decision to grant or deny a motion to . . . reconsider is within

the discretion of the Board.” 8 C.F.R. § 10032(a). “Discretionary decisions of the BIA

will not be disturbed unless they are found to be arbitrary, irrational or contrary to law.”

Tipu v. INS, 

, 582 (3d Cir. 1994).

       Durant has merely submitted a 2001 bond order and restated the arguments he

made before the Immigration Court and on appeal to the BIA. As to his argument that his

appeal should have been assigned for review by a three-member panel, the regulations

specifically foreclose motions to reconsider on that basis. See 8 C.F.R. § 1003.2(b)(3).

       The order of the BIA denying reconsideration states: “We have reviewed the


   1
       Prior to the enactment of the REAL ID Act, the government moved to dismiss
Durant’s petition for review for lack of jurisdiction, citing 8 U.S.C. § 1252(a)(2)(C).
Section 1252(a)(2)(C) stated at that time that “[n]otwithstanding any other provision of
law, no court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal offense covered in section
. . . 237(a)(2)(A)(iii) [of the INA].” We need not address the ways in which the REAL ID
Act amended § 1252 because we review the BIA’s order denying Durant’s motion to
reconsider, not a “final order of removal.”
                                              3
arguments made by the respondent in the motion and note that we considered these

arguments before rendering a decision in this case. We decline to revisit them.” (A.R. 3.)

We have considered the same arguments, now raised before us, and see no basis for

saying that the decision of the BIA was arbitrary, capricious, or contrary to law.

                                            III.

       The order of the BIA will be affirmed.




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