Nava Mier Y Teran v. Ashcroft , 168 F. App'x 868 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 27, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MIGUEL A. NAVA MIER Y TERAN,
Petitioner,
v. No. 04-9586
(No. A76-723-358)
ALBERTO R. GONZALES , * (Petition for Review)
Respondent.
ORDER AND JUDGMENT **
Before HENRY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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This matter comes before us on the Petition for Review filed by petitioner
Miguel Nava Mier Y Teran and on the Motion to Dismiss in Part, Motion for
Summary Disposition in Part, and in the Alternative, Motion to Reset the Briefing
Schedule, filed by respondent, the United States Attorney General. Briefly, the
respondent argues in his motion that petitioner, a native and citizen of Mexico,
was placed in removal proceedings on March 14, 2003, and was ordered removed,
in absentia, when he failed to appear for his hearing before the Immigration
Judge (IJ). Petitioner filed a motion to reopen the proceedings with the IJ which
was denied by the IJ. This denial was summarily affirmed by the Board of
Immigration Appeals (BIA) on appeal. Petitioner subsequently filed a motion for
reconsideration with the BIA which was denied as untimely. Petitioner then filed
his petition with this court seeking review of the BIA’s denial of his motion for
reconsideration. His brief to this court, however, attacks the agency’s decision on
his motion to reopen, not its decision on the motion to reconsider. Respondent
argues (1) that this court has no jurisdiction to review the denial of the motion to
reopen, and (2) that the denial of the untimely motion to reconsider should be
summarily affirmed. We agree on both counts.
The IJ’s order denying petitioner’s motion to reopen was entered July 3,
2003. The BIA’s decision affirming the IJ’s decision without opinion–and
thereby making the IJ’s decision the final agency determination–was entered
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May 25, 2004. Because 8 U.S.C. § 1252(b)(1) requires that a “petition for review
must be filed not later than 30 days after the date of the final order of removal,”
the last day petitioner could have filed a petition seeking review of the BIA’s
denial of the motion to reopen would have been June 24, 2004. 1 None was filed.
The fact that petitioner filed an untimely motion to reconsider on July 2, 2004,
does not change this fact. Stone v. INS, 514 U.S. 386, 395 (1995) (“[T]he filing
of [a] reconsideration motion does not toll the time to petition for review” of a
final removal order.). Consequently, this court has no jurisdiction to review the
agency’s denial of the motion to reopen.
Petitioner’s September 17, 2004, petition for review with this court,
however, was filed within thirty days of the BIA’s August 19, 2004, decision that
denied petitioner’s motion for reconsideration as untimely. The petition for
review also states that petitioner is petitioning for review of the August 19, 2004,
order denying reconsideration. Petitioner argues in his response to the
government’s motion that, in reviewing the denial of the motion for
reconsideration, this court may revisit the agency’s denial of the motion to
reopen. In support of his argument, petitioner cites De Jimenez v. Ashcroft,
370 F.3d 783 (8th Cir. 2004). De Jimenez is easily distinguished from this case
1
A denial of a motion to reopen is a final order that may be appealed to this
court. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004).
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and, in fact, supports this court’s ruling. In De Jimenez, the petitioner failed to
appear at her hearing allegedly because she was unable to locate the building
where the hearing was to be held and her child became ill. An order of removal
was entered and she moved to reopen. That motion was denied and she moved for
reconsideration of the order denying the motion to reopen. After her motion for
reconsideration was also denied on the merits, she petitioned for review and the
government argued that the court of appeals had no jurisdiction over the denial of
the motion to reopen because the petition was untimely filed as to that order. The
Eighth Circuit agreed that it only had jurisdiction to review the order denying the
motion to reconsider, not the denial of the motion to reopen. The court held,
however: “although we are not directly reviewing the BIA’s order denying
petitioner’s motion to reopen, our review of the denial of the motion to reconsider
may require us to consider the validity of that order.” Id. at 789. This holding
makes perfect sense in that to determine the propriety of a denial on the merits of
a motion to reconsider a previous decision, a court must examine that previous
decision. This does not help petitioner, however, because here the BIA denied the
motion to reconsider as untimely. No consideration of its previous order must be
undertaken by a court in order to determine the merits of the denial of
reconsideration.
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Consequently, unlike the situation in De Jimenez, the question before
this court is whether the agency erred in denying petitioner’s motion for
reconsideration as untimely. It is clear that no error was made. The regulations
provide that “[a] motion to reconsider a decision must be filed with the Board
within 30 days after the mailing of the Board decision.” 8 C.F.R. § 1003.2(b)(2).
Petitioner waited until July 2, 2004, to file his motion to reconsider the BIA’s
May 25, 2004, decision. Further, petitioner does not argue on appeal that the BIA
erred in finding that his motion was untimely.
Considering the above, respondent’s motion seeking dismissal in part and
summary disposition in part is GRANTED. The petition for review is
(1) DISMISSED for lack of jurisdiction to the extent it seeks review of the
agency’s denial of the motion to reopen, and (2) DENIED to the extent it seeks
review of the BIA’s order denying petitioner’s motion to reconsider.
Entered for the Court
Michael R. Murphy
Circuit Judge
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