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Cho v. Holder, 10-2323 (2011)

Court: Court of Appeals for the Fourth Circuit Number: 10-2323 Visitors: 30
Filed: May 20, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2323 JOONG H. CHO; KYOUNG S. KIM; KYU D. CHO, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: May 2, 2011 Decided: May 20, 2011 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Petition dismissed by unpublished per curiam opinion. John D. Shin, Mark R. Millstein, Falls Church, Virginia, for Petitioners. Tony West, Assistan
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-2323


JOONG H. CHO; KYOUNG S. KIM; KYU D. CHO,

                Petitioners,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   May 2, 2011                     Decided:   May 20, 2011


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


John D. Shin, Mark R. Millstein, Falls Church, Virginia, for
Petitioners.   Tony West, Assistant Attorney General, John S.
Hogan, Senior Litigation Counsel, Michael C. Heyse, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Joong H. Cho, Kyoung S. Kim and Kyu D. Cho are natives

and citizens of South Korea.             They petition for review an order

of    the   Board    of    Immigration   Appeals    (“Board”)   denying      their

motions to reopen and to reconsider.                 Because we conclude the

Petitioners have abandoned any challenge to the Board’s order,

we dismiss the petition for review.

             The Petitioners did not file a timely petition for

review from the April 2, 2010 order dismissing the appeal from

the    immigration        judge’s   decision.      Their   brief,    however,    is

almost entirely an attack on the Board’s dismissal order and the

immigration         judge’s    ruling.       This    court    does     not   have

jurisdiction to review that order.                See 8 U.S.C. § 1252(b)(1)

(2006) (stating that the petition for review must be filed no

later than thirty days after the date of the final order of

removal).      It is well-settled that the subsequent filing with

the Board of a motion to reconsider does not toll the time for

filing a petition for review in the Court of Appeals.                           See

Stone v. INS, 
514 U.S. 386
, 394, 405-06 (1995).

             The denial of a motion to reconsider is reviewed for

abuse of discretion.            8 C.F.R. § 1003.2(a) (2010); Narine v.

Holder, 
559 F.3d 246
, 249 (4th Cir. 2009); Jean v. Gonzales, 
435 F.3d 475
, 481 (4th Cir. 2006).                  This court also reviews the

denial of a motion to reopen for abuse of discretion.                   8 C.F.R.

                                         2
§    1003.2(a);    INS    v.    Doherty,         
502 U.S. 314
,     323-24   (1992);

Barry v. Gonzales, 
445 F.3d 741
, 744 (4th Cir. 2006).                                  Under

Rule 28(a)(9)(A) of the Federal Rules of Appellate Procedure,

“the argument [section of the brief] . . . must contain . . .

appellant’s contentions and the reasons for them, with citations

to    the   authorities        and   parts       of    the    record     on    which    the

appellant relies[.]”           Furthermore, the “[f]ailure to comply with

the specific dictates of [Rule 28] with respect to a particular

claim triggers abandonment of that claim on appeal.”                          Edwards v.

City of Goldsboro, 
178 F.3d 231
, 241 n.6 (4th Cir. 1999); see

also Ngarurih v. Ashcroft, 
371 F.3d 182
, 189 n.7 (4th Cir. 2004)

(failure to challenge the denial of relief under the CAT results

in    abandonment    of    that        challenge).            In    their     brief,     the

Petitioners       fail    to     challenge         the       Board’s     order    denying

reopening    and    reconsideration.              Specifically,        the    Petitioners

fail to assert that the Board erred finding that on appeal they

did not raise a meaningful challenge to the immigration judge’s

decision.      Similarly,        the    Petitioners          fail   to    challenge     the

Board’s findings that reopening was not warranted and that their

“new” evidence was previously available or cumulative.

             Because the Petitioners have abandoned any challenge

to the Board’s order denying their motions to reconsider and

reopen and this court does not have jurisdiction to review the

Board’s order dismissing the appeal from the immigration judge’s

                                             3
decision, we dismiss the petition for review.               We dispense with

oral   argument   because     the    facts   and   legal    contentions     are

adequately   presented   in    the    materials    before     the   court   and

argument would not aid the decisional process.



                                                           PETITION DISMISSED




                                       4

Source:  CourtListener

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