Siewe v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-61110
Summary Calendar
ANASTASIA NKAMINE SIEWE,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 087 137
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Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Anastasia Nkamine Siewe seeks review of the Board of
Immigration Appeals’ (“BIA”) denial of her motion to reopen
immigration proceedings. Reviewing for abuse of discretion, we
affirm for the following reasons:
1. Pursuant to immigration regulations, a filing fee is
required in connection with the filing of a motion to
reopen, unless the motion to reopen “is based
exclusively on an application for relief [such as
asylum] that does not require a fee.” 8 C.F.R. §

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No. 05-61110
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1003.24(b)(2)(i)(2005). Siewe’s motion to reopen is not
based exclusively on an asylum application. Siewe’s
original application for asylum was withdrawn and the
proceeding below addressed only the merits of her I-130
request for adjustment of status.
Siewe’s motion to reopen was based on a claim of
ineffective assistance of counsel. While that claim
was related to advice Siewe received regarding asylum,
Siewe’s motion to reopen did not address her
eligibility for asylum, and she did not attach an
asylum application to the motion. See id. at
§ 1003.23(b)(3) (a motion to reopen for the purpose of
acting on an application for relief must be accompanied
by the application and all supporting documents).
2. Because the basis of Siewe’s motion to reopen did not
fall within the fee exemptions set out in § 1003.8, we
agree with the BIA’s determination that a filing fee
was required.
3. Because we conclude that the BIA did not abuse its
discretion in denying the motion to reopen for lack of
a filing fee, we do not address Siewe’s argument that
her motion met the requirements of In re Lozada, 19 I &
N Dec. 637 (BIA 1988).
The petition for review is DENIED.

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