NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-2644 _____________ DIEGO ANTONIO SACOTO RIVERA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ___________________________ On Petition for Review from the Board of Immigration Appeals BIA-1 No. A094-241-106 Immigration Judge: Dorothy Harbeck _______________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 2, 2020 Before: SMITH, Chief Judge, HARDIMAN and KRAUSE, Circuit Judges (Opinion Filed: March 5, 2020) _______________________ OPINION _______________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge. Diego Sacoto-Rivera petitions for review of a decision by the Board of Immigration Appeals (BIA). For the reasons that follow, we will deny the petition. I. Sacoto-Rivera, a native of Ecuador, entered the United States in 2001 and overstayed his admission period. He was charged as removable in 2008, and the BIA ultimately ordered his removal. In August 2012, this Court denied his petition for review of the BIA’s final order of removal. See Sacoto-Rivera v. Att’y Gen., 499 F. App’x 148, 150 (3d Cir. 2012). More than five years later, Sacoto-Rivera moved to reopen his immigration proceeding. On May 29, 2018, the BIA denied the motion because it did not demonstrate exceptional circumstances and because it was untimely filed and not subject to equitable tolling. Sacoto-Rivera did not petition this Court for review. Instead, on June 28, 2018, Sacoto-Rivera submitted to the BIA a motion to reconsider the order denying reopening. The BIA rejected Sacoto-Rivera’s motion for failure to include a certificate of service. See 8 C.F.R. § 1003.2(g)(1) (requiring proof of service). The BIA’s rejection notice stated, inter alia, that the rejection “DOES NOT EXTEND THE ORIGINAL STRICT TIME LIMIT” and 2 instructed that a corrected motion “should include a request that the Board accept the motion by certification.” AR 50;1 see 8 C.F.R. § 1003.1(c) (regarding certification). The notice further specified that “[t]he Board will consider whether to certify each request in the exercise of discretion.” AR 50. Sacoto-Rivera re-sent the motion with a certificate of service on July 20, 2018, “respectfully request[ing] to honor the date of the initial filing of this motion” but making no request to accept the motion by certification. AR 49. The BIA received the motion on July 24, 2018. On June 20, 2019, the BIA denied the motion as untimely filed and because it “fail[ed] to indicate any error in law or fact, or argument that was overlooked, in our prior decision.” JA 7. Sacoto-Rivera timely filed this petition for review. II. We have jurisdiction to review the BIA’s order denying the motion to reconsider pursuant to 8 U.S.C. § 1252(a). See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). We review such an order for abuse of discretion. Id. We will disturb the BIA’s decision if it was “arbitrary, irrational, or contrary to law.” Id. 1 “AR” refers to the Administrative Record, while “JA” refers to the Joint Appendix. 3 ...
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