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Ygnacio Ccayhuari Ocampo v. Eric H. Holder Jr.

December 14, 2010

YGNACIO CCAYHUARI OCAMPO, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review or an Order of the Bureau of Immigration Appeals Agency No. A072-687-371

The opinion of the court was delivered by: Hogan, Senior United States District Judge:

FOR PUBLICATION

OPINION

Argued and Submitted July 14, 2010-San Francisco, California

Before: Procter Hug, Jr., and Milan D. Smith, Jr., Circuit Judges, and Thomas F. Hogan,, Senior District Judge.*fn1

OPINION

Ygnacio Ccayhuari Ocampo petitions for review of a Board of Immigration Appeals ("BIA") order denying as untimely his motion to reopen his immigration removal proceedings. Because a removal order that grants voluntary departure becomes final upon the earlier of (i) a BIA determination affirming the order or (ii) the expiration of the deadline to seek the BIA's review of the order, and not upon overstay of the voluntary departure period, we hold that the BIA correctly determined that Ccayhuari's motion to reopen was untimely. We therefore deny the petition.

I

Ccayhuari is a citizen of Peru who was admitted to the United States on December 1, 1988, as a nonimmigrant temporary worker with authorization to remain until October 14, 1990. AR 37, 920. After overstaying his visa, Ccayhuari applied for asylum in 1993 on the ground that he previously was a member of the Peruvian army and, as a result, he feared persecution by the Sandero Luminoso, which is more commonly referred to as the Shining Path. AR 31-34, 40-45. The former Immigration and Naturalization Service ("INS") began removal proceedings in 1999, AR 37-38, during which Ccayhuari admitted all factual allegations and conceded his removability, AR 40. On September 25, 2000, an Immigration Judge ("IJ") determined that Ccayhuari was credible and "his fear may be subjectively genuine, however, objectively the C[o]urt finds that there's no reasonable basis on which to find that anyone would want to harm the respondent since he has been absent from Peru for some 13 years." AR 47. Accordingly, the IJ denied Ccayhuari's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). AR 47. The IJ noted that, during an earlier proceeding, Ccayhuari had conceded his removability and that the IJ had designated Peru as the country for removal. AR 40-41. However, the IJ granted Ccayhuari's application for voluntary departure for 60 days. AR 48.

Ccayhuari appealed the IJ's decision to the BIA, which summarily affirmed the decision via an order dated November 12, 2002. AR 54. Ccayhuari then petitioned this court for review of the BIA's summary affirmance. AR 56-69. In 2003, while Ccayhuari's petition was pending before this court, he married a United States citizen and, a year later, his wife began the process to have his status adjusted to become a permanent resident by filing an I-130 Petition for Alien Relative. AR 71, 73-74. On March 29, 2005, this court denied Ccayhuari's petition for review but, several months later, granted Ccayhuari's motion to stay the issuance of the mandate until the United States Citizenship and Immigration Services ("Immigration Services")*fn2 processed his wife's I-130 petition. AR 89. The Immigration Services approved the I-130 petition on December 16, 2005. AR 91.

On February 17, 2006, Ccayhuari filed a motion to reopen with the BIA, seeking consideration of his prima facie request for adjustment of status and to stay his voluntary departure period pending resolution of the motion. AR 14-20. On April 3, 2006, the BIA denied the motion to reopen as untimely because it was not filed within 90 days after the BIA's November 12, 2002, order.

Ccayhuari now petitions this court to reverse the BIA's decision and remand his case so he can proceed to adjust his immigration status. On October 17, 2006, the court granted a temporary stay of Ccayhuari's voluntary departure period pending the resolution of this petition.

II

The BIA's denial of a motion to reopen is reviewed for abuse of discretion. He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007). "The decision of the BIA should be left undisturbed unless it is 'arbitrary, irrational, or contrary to law.' " Id. at 1131 (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). "We review de novo the BIA's determination of ...


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