Mana v. Gonzales , 128 F. App'x 167 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1599
PAJTIM MANA AND VIOLETA MANA,
Petitioners,
v.
ALBERTO GONZÁLES, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Desmond P. FitzGerald and FitzGerald & Co., LLC on brief for
petitioners.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Stacy S. Paddock, Attorney, Office of Immigration
Litigation, on brief for respondent.
May 11, 2005
*
Alberto Gonzáles was sworn in as United States Attorney
General on February 3, 2005. We have therefore substituted
Attorney General Gonzáles for John Ashcroft as the respondent. See
Fed. R. Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2)
Per Curiam. Petitioners Pajtim and Violeta Mana, natives
of Albania, seek review of a Board of Immigration Appeals ("BIA")
decision affirming an Immigration Judge's denial of their
application for asylum and withholding of removal. For the reasons
explained below, the petition for review of the BIA's order denying
asylum and withholding of removal is dismissed as untimely. To the
extent that the petitioners also seek review of the BIA's
subsequent order denying reconsideration, that order is affirmed.
I.
Petitioner Pajtim Mana is a member of the Albanian
Democratic Party who asserts that he was threatened and assaulted
while living in Albania between 1993 and 1997 as a result of his
political beliefs and his role in disarming the former Communist
government. In late 1997, Pajtim and his wife Violeta sent their
son to live with relatives in Greece, where their daughter also now
resides. The petitioners stayed behind in Albania. During a trip
to Greece in December 1999, they obtained visas to travel to the
United States. The Manas then returned to Albania, making three
more trips in and out of the country before they departed for the
United States in October 2000. They entered the United States on
October 31, 2000 as nonimmigrant visitors with permission to remain
until April 30, 2001.
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The petitioners applied for political asylum and
withholding of removal2 in July 2001, prompting the Immigration and
Naturalization Service ("INS")3 to issue a Notice to Appear
charging them with removability under 8 U.S.C. § 1227(a)(1)(B) for
remaining in the United States for longer than permitted. Having
conceded removability, the petitioners presented their asylum claim
to an Immigration Judge ("IJ") on November 8, 2002. In an oral
decision at the conclusion of the proceeding, the IJ found that
Pajtim "has failed to establish any effective basis for fearing
harm in Albania at this time." The IJ emphasized that regardless
of whether Pajtim had been persecuted before 1997, he then remained
in his home village in Albania without incident for more than three
years before departing for the United States. The IJ therefore
denied both Pajtim's application for asylum and his wife's
derivative application, and ordered them removed to Albania.4
2
Pajtim Mana is the lead petitioner in this case. His wife,
Violeta Mana, filed a derivative application.
3
In March 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security and reorganized
as the Bureau of Immigration and Customs Enforcement ("BICE"). For
simplicity we refer to the agency throughout this opinion as the
INS.
4
Although the government did not oppose voluntary departure,
the IJ concluded that the petitioners were ineligible because they
were not physically present in the United States for more than a
year before they were placed in removal proceedings. See 8 U.S.C.
§ 1229c(b). The petitioners have not challenged this ruling.
-3-
The petitioners appealed the IJ's decision to the BIA,
which summarily affirmed on February 5, 2004. The petitioners did
not file a timely petition for review of the BIA's decision in this
court. They did, however, file a timely motion seeking
reconsideration by the BIA, arguing that the BIA erred in giving
the case only a "cursory review" and that, instead, it should have
been reviewed by a three-member panel. See 8 C.F.R. § 1003.1(e)(4)
(2004) (describing procedure for affirmance without opinion); id.§ 1003.1(e)(6) (describing circumstances in which cases may be
reviewed by a three-member panel). The BIA denied the motion to
reconsider on April 7, 2004, finding that the petitioners had "not
demonstrated any error in our decision of February 5, 2004." The
BIA also noted that motions to reconsider based solely on the
argument that the prior appeal should have been reviewed by a
three-member panel rather than by summary affirmance are barred by
8 C.F.R. § 1003.2(b)(3).5 The petitioners timely appealed from the
BIA's April 7, 2004 denial of the motion to reconsider.
II.
Petitions for review of a BIA order "must be filed not
later than 30 days after the date of the final order of removal."
8 U.S.C. § 1252(b)(1) (2004). This requirement of timely filing is
5
8 C.F.R. § 1003.2(b)(3) provides that "[a] motion to
reconsider based solely on an argument that the case should not
have been affirmed without opinion by a single Board Member, or by
a three-Member panel, is barred."
-4-
jurisdictional. See Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir.
2004). The BIA's February 5, 2004 order affirming the IJ's denial
of asylum was a final order of removal triggering the thirty-day
appeals period, and that period was not tolled by the motion to
reconsider. See id. at 359-60; see also Nascimento v. I.N.S., 274
F.3d 26, 28 (1st Cir. 2001) (explaining that the thirty-day period
"runs from the date of the BIA's affirmance of the Immigration
Judge's order, not from the BIA's denial of reconsideration"). The
petitioners did not file the present appeal until May 6, 2004,
which is within thirty days of the BIA's April 7, 2004 decision
denying the motion to reconsider but more than thirty days after
the BIA's February 5, 2004 decision affirming the underlying
deportation order.
We therefore lack jurisdiction to review the denial of
asylum and withholding, the focus of the petitioners' brief. The
only issue properly before us on appeal is whether the BIA abused
its discretion in denying the motion for reconsideration.6 Ven,
386 F.3d at 360. The petitioners have advanced no argument before
us that would warrant overturning the BIA's denial of their motion
under the deferential abuse of discretion standard. In fact, their
brief is entirely silent on this point.
6
The petitioners also request that we remand to the IJ to
allow them to present a claim for relief under the Convention
Against Torture (CAT). Because they offer no argument in support
of this summary request, we consider the argument waived. See
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004).
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We therefore affirm the BIA's denial of the Manas' motion
to reconsider and dismiss their appeal of the BIA's denial of
asylum for lack of jurisdiction.
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