NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 05-4547

JEYAN VAZIRI,

Petitioner

v. A T T O R N E Y GENERAL OF THE UNITED STATES,

Respondent

On Review of a Decision of the

B o a rd of Immigration Appeals

(A g e n c y No. A22 619 485)

Im m ig ra tio n Judge: Ernest H. Hupp

Submitted Under Third Circuit LAR 34.1(a)

S e p te m b e r 21, 2006

B e f o re : BARRY, CHAGARES AND COWEN, CIRCUIT JUDGES

(F ile d : October 11, 2006)

OPINION

PER CURIAM J e ya n Vaziri, a native and citizen of Iran, has filed a petition for review of an order o f the Board of Immigration Appeals ("BIA") denying his motion to reconsider its prior d e n ia l of a motion to reopen his deportation proceedings. We will deny the petition.

Vaziri arrived in the United States in 1978 at age sixteen, aboard what he alleges w a s an Iranian Air Force plane "used to evacuate certain high standing Iranians fleeing for th e i r lives in the wake of the Islamic Revolution in Iran." He was admitted as a n o n im m ig ra n t student. In June 1980, while in high school, Vaziri was charged as being d e p o rta b le on the ground that he failed to comply with the terms of his admission by w o rk in g (part time, he claims) at the Snack Shack Restaurant in Huntington, West Virginia.

See Immigration and Nationality Act ("INA") § 241(a)(9) (1976) [8U.S.C. § 1251(a)(9) (19 7 6 )], (current version at INA § 237(a)(1)). An Immigration Judge ("IJ") found Vaziri d e p o rta b le as charged. In November 1980, the Board of Immigration Appeals ("BIA") d i sm is s e d Vaziri's appeal, and permitted him to voluntarily depart within 15 days.

V a z iri did not depart. Instead, in 1981, he filed a motion to reopen with the BIA, s e e k in g to apply for asylum based on his and his family's support for the former Shah of Ira n . Vaziri claimed that he did not apply earlier on the advice of his father, who feared th a t their family members in Iran would be persecuted if the Islamic government became a w a re that Vaziri had applied for asylum. In September 1982, the BIA denied the motion to reopen, concluding that Vaziri "fail[ed] to establish prima facie evidence of anticipated p e r s e c u ti o n . " O v e r twenty-two years later, Vaziri filed another motion to reopen to pursue an a p p lic a tio n for adjustment of status based on an approved I-130 visa petition. The g o v e rn m e n t opposed the motion, and the BIA denied it as untimely on April 20, 2005. The B IA also declined to exercise discretion to reopen the proceedings sua sponte, noting that V a z iri had "not provided any explanation as to his failure to depart this country." In May 2005, Vaziri filed a "Motion to Reconsider" the denial of his motion to re o p e n . He alleged that the "Board's decision [denying reopening] incorrectly state[d] that R e sp o n d e n t failed to explain his reason to depart the United States after being ordered d ep o rted ." In an order dated September 12, 2005, the BIA denied the motion to reconsider, c o n c lu d in g that "respondent has not identified any error of fact or law in our previous d e c is io n ." Vaziri has filed a timely pro se petition for review.

We have jurisdiction under INA § 242(a)(2)(D) [8U.S.C. § 1252(a)(2)(D)] to re v ie w "constitutional claims and legal questions" concerning the BIA's denial of the " M o tio n to Reconsider." We review the denial for abuse of discretion.1 See Nocon v. INS, 7 8 9 F.2d 1028, 1029-33 (3d Cir. 1986). Under this standard, we will overturn the BIA's d e c is io n only if it is "arbitrary, irrational or contrary to law." McAllister v. Attorney G en era l, 444 F.3d 178, 185 (3d Cir. 2006) (quotations and citations omitted). A motion to reconsider must specify the errors of law or fact in the BIA's prior d e c is io n . 8 C.F.R. § 1003.2(b)(1). Here, the BIA found that Vaziri failed to identify any s u c h errors. Vaziri disagrees, arguing that his reconsideration motion did specify an error o f fact in the BIA's denial of reopening, namely, that the BIA improperly concluded that he h ad not explained his failure to depart after being ordered to do so. Importantly, however, V a z iri's alleged failure to provide an explanation was not the basis of the BIA's denial of re o p e n in g .2 Rather, it denied reopening because the motion was untimely. See 8 C .F .R . § 1003.2(c)(2) (requiring that motions to reopen generally be filed within 90 days a f te r the date on which the final administrative decision was rendered). Therefore, to the e x t e n t that Vaziri's motion for reconsideration did not allege any error in the untimeliness d e te rm in a tio n , the BIA properly denied his motion for reconsideration.

V a z iri also asserts that the BIA abused its discretion by "ignor[ing] the new e v id e n c e submitted by petitioner, which represented new facts not available at his prior d e p o rta tio n proceeding." In essence, Vaziri believes that the BIA should have treated his " M o tio n for Reconsideration" as a motion to reopen. We disagree. Under the language of 8 C.F.R. § 1003.2(b)(1), a motion for reconsideration is used to challenge determinations of la w and fact in the BIA's prior decision. By contrast, a motion to reopen is used to present n e w evidence so that a new decision can be entered on a different factual record. See 8 C .F .R . § 1003.2(c). In an apparent effort to establish that country conditions in Iran have c h a n g e d since his previous hearing before the IJ, Vaziri submitted the 2004 State D e p a rtm e n t Report on Human Rights Practices and affidavits from himself and his father.

Nowhere, however, did Vaziri attempt to explain how this evidence demonstrates that c o u n try conditions in Iran have changed. Under these circumstances, we conclude that the B IA 's failure to address the allegedly new evidence was not arbitrary, irrational or contrary to law.

For these reasons, and after careful consideration of the record and the parties' c o n te n tio n s , we will deny Vaziri's petition for review.

1 In this proceeding, we cannot review the BIA's original final order of removal or its denial of Vaziri's two prior motions to reopen because the petition for review was only timely as to the denial of his "Motion for Reconsideration." See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d 1028, 1032-34 (3d Cir. 1986). 2 At most, the absence of such an explanation contributed to the BIA's decision not to sua sponte reopen the proceedings. To the extent that Vaziri alleges that the BIA abused its discretion in denying reconsideration of the denial of sua sponte reopening, we lack jurisdiction. See Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003).