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Dervisevic v. Attorney General of the United States
Citation: 353 F. App'x 688Docket: No. 09-3253
Court: Court of Appeals for the Third Circuit; November 24, 2009; Federal Appellate Court
Zaim Dervisevic petitioned for review of a decision by the Board of Immigration Appeals (BIA) which denied his motion to reopen removal proceedings. The court construed the Government's Motion for Summary Affirmance as a motion to deny Dervisevic's petition and granted it, thereby denying the petition for review. Dervisevic, a citizen of Montenegro, entered the U.S. in 2002 and overstayed his visa. His asylum application was denied by an Immigration Judge on August 18, 2004, and the BIA affirmed this denial on December 21, 2005. He filed a motion to reopen on January 8, 2009, based on a pending Refugee/Asylee Relative Petition by his wife, who had been granted asylum. Under 8 C.F.R. 1003.2(c)(2), a motion to reopen must typically be filed within 90 days of a final order. Dervisevic contended that his motion should be considered jointly filed with the Government, exempting it from the 90-day limit, due to his attempts to obtain consent from the Department of Homeland Security (DHS). However, the BIA declined to treat the motion as joint due to the lack of an affirmative statement from DHS agreeing to the reopening and thus deemed it untimely. The court concurred with the BIA's assessment that the motion was not jointly filed and upheld that the BIA did not abuse its discretion in denying the motion as untimely. Dervisevic and his attorney argued that the BIA failed to consider the asylum grants to his wife and three sons as "new facts" allowing for reopening. However, the court noted that simply presenting new facts does not automatically make a motion timely. Dervisevic did not challenge the timeliness issue in his filings or claim a change in country conditions that might excuse the delay. Consequently, the court found no substantial issues raised in the petition for review, leading to its summary denial. Additionally, the court declined to consider Dervisevic's filing of August 30, 2009, which contained exhibits without a motion or response, and noted that he did not comply with a previous order from the Clerk. Dervisevic's motion for a stay of removal was also deemed moot.