Summary Calendar VICTOR OMOZEE v. Michael Bmukasey, U Sattorney General

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60974
Summary Calendar
VICTOR OMOZEE
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 826 840
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Victor Omozee, a native and citizen of Nigeria, petitions for review of the
Board of Immigration Appeals’ (BIA’s) decision denying his motion for
reconsideration of the BIA’s earlier denial of his motion to reopen his removal
proceedings. To the extent that Omozee seeks reversal of the BIA’s decision of
July 2006 denying his motion to reopen the removal proceedings, we dismiss his
petition for lack of jurisdiction. The denial of a motion to reopen removal
proceedings is construed as a final order of removal for purposes of an appellate
United States Court of Appeals
Fifth Circuit
F I L E D
January 3, 2008
Charles R. Fulbruge III
Clerk

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No. 06-60974
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court’s jurisdiction. Giova v. Rosenberg, 379 U.S. 18 (1964). A petition for
review must be filed not later than 30 days after the date of a final order of
removal. 8 U.S.C. § 1252(b)(1). A deportation or removal order is final and
reviewable when issued. Stone v. INS, 514 U.S. 386, 405 (1995). The period for
filing a petition for review is mandatory and jurisdictional and not subject to
tolling by a motion for reconsideration. Id. Omozee did not seek any type of
relief in this court until September 29, 2006, which was more than 30 days after
the denial of his motion to reopen.
We do, however, have authority to review the denial of Omozee’s motion
for reconsideration under a “highly deferential abuse of discretion standard.”
Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th Cir. 2005). Under this standard,
even an erroneous decision can stand if “it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Id. at
304. The BIA’s decision on Omozee’s reconsideration motion easily meets this
standard. A motion for reconsideration must specify the errors of fact or law in
the prior decision. 8 C.F.R. § 1003.2(b)(1). Omozee’s motion failed to specify any
errors of fact or law in the decision denying reopening. Omozee merely recycled
the legal arguments he had presented earlier. Additionally, we cannot fault the
BIA’s other reason for denying reconsideration as a matter of its discretion based
on Omozee’s lack of forthrightness during his removal proceedings.
We also reject Omozee’s contention that the BIA violated his due process
rights by deciding his case without oral argument. In his notice of appeal to the
BIA, Omozee checked the “no” box when asked if he desired oral argument.
PETITION DISMISSED IN PART AND DENIED IN PART.

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