Lipilina v. Immigration & Naturalization Service , 87 F. App'x 101 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
OLGA LIPILINA,
Petitioner,
v. No. 02-9550
(BIA No. A72-121-269)
IMMIGRATION & (Petition for Review)
NATURALIZATION SERVICE,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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.
*
This order and judgment is not binding precedent, except under the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.
Petitioner Olga Lipilina petitions for review of the Board of Immigration
Appeals (BIA) decision denying her Motion to Reopen her removal proceedings.
Lipilina’s brief, however, does not allege that the BIA committed any errors in its
decision; instead, Lipilina contends that the BIA erred in affirming the
Immigration Judge’s (IJ) denial of her original application for asylum. Lipilina
failed to timely petition for review of that decision so this court does not have
jurisdiction to review it. With regard to the Motion to Reopen, we review the
BIA’s decision for abuse of discretion. See Osei v. INS , 305 F.3d 1205, 1208
(10th Cir. 2002). Lipilina claims also that she received ineffective assistance of
counsel when she filed her Motion to Reopen. We lack jurisdiction to review this
claim because Lipilina did not raise this issue with the BIA prior to filing her
petition for review. We dismiss the petition for review of Lipilina’s ineffective
assistance of counsel claim. We deny the petition with respect to the Motion to
Reopen and affirm the BIA’s decision.
Background
Lipilina originally applied for asylum on June 9, 1993. After a hearing on
her application, the IJ issued a decision denying asylum on December 13, 1994
but granting voluntary departure. Lipilina timely appealed to the BIA, and the
BIA affirmed the IJ’s decision on August 28, 2000. Lipilina did not file a
petition for review of the BIA’s decision affirming the IJ’s ruling on her asylum
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application. On June 28, 2001, Lipilina filed a Motion to Reopen with the BIA on
the grounds of changed circumstances. The BIA denied the Motion to Reopen on
July 2, 2002 because Lipilina’s motion was not supported by any affidavits or
other evidentiary material. Lipilina timely filed her petition for review of the
BIA’s denial of her Motion to Reopen on August 1, 2002.
Motion to Reopen
The regulations provide that “[a] motion to reopen proceedings shall . . . be
supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).
The BIA found that the brief submitted by Lipilina did not include any affidavits
or other evidentiary material, and, therefore, it failed to meet the regulatory
requirements for a motion to reopen. Lipilina does not challenge this finding.
In fact, she concedes in her brief before this court that “counsel failed to support
[the allegations in the Motion to Reopen] with affidavits or other materials having
evidentiary value.” Pet’s Br. at 28. Accordingly, the BIA did not abuse its
discretion in denying the Motion to Reopen. See Ghosh v. Attorney General ,
629 F.2d 987, 989 (4th Cir. 1980) (“It is not an abuse of discretion to deny a
motion to reopen deportation proceedings when the motion is not supported by
proper affidavits or other evidentiary material.”).
To the extent that Lipilina’s brief seeks to challenge the original decision
of the BIA affirming the IJ’s denial of her asylum application, we lack
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jurisdiction to review that decision. The Immigration and Nationality Act
requires a petition for review to be filed with the court of appeals within thirty
days of the date of the final order of removal. See 8 U.S.C. § 1252(b)(1).
In Lipilina’s case the date of her final order of removal was August 28, 2000,
when the BIA dismissed Lipilina’s appeal and affirmed the IJ’s decision denying
asylum. Lipilina did not file a timely petition for review of this order. Instead,
she filed a Motion to Reopen on June 28, 2001, arguing changed circumstances
as the grounds for her motion. Subsequently filing a motion to reopen or to
reconsider does not affect the finality of the original order of removal. See Stone
v. INS , 514 U.S. 386, 405 (1995).
Lipilina argues in her petition that the BIA erred because (1) it failed to
make specific findings regarding the risk of future persecution on account of
Lipilina’s political opinion, and (2) the decision denying asylum was not
supported by substantial evidence in the record. Both of these issues are
challenges to the BIA’s August 28, 2000 order. Because the petition for review
was not filed within thirty days of the BIA’s August 28, 2000 decision, this court
lacks jurisdiction to review that order. See Nahatchevska v. Ashcroft , 317 F.3d
1226, 1227 (10th Cir. 2003) (dismissing petition for review for lack of
jurisdiction because petition was not timely filed).
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Ineffective Assistance of Counsel
Lipilina’s petition also contains a claim for ineffective assistance of
counsel with respect to her Motion to Reopen. Lipilina did not raise this issue
before the BIA. This court has held that “because the BIA provides a mechanism
for hearing an ineffective assistance claim, an alien’s failure to raise the claim to
the BIA deprives this court of jurisdiction to review it.” Akinwunmi v. INS ,
194 F.3d 1340, 1341 (10th Cir. 1999). Because Lipilina failed to raise her
ineffective assistance of counsel claim to the BIA, we do not have jurisdiction to
review it.
We DISMISS the petition for review of the claim for ineffective assistance
of counsel. We DENY the petition for review of the Motion to Reopen and we
AFFIRM the BIA’s decision.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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