Akkaya v. Atty Gen USA , 285 F. App'x 952 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-15-2008
Akkaya v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4441
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
NO. 07-4441
___________
HAYRETTIN AKKAYA;
IPEK AKKAYA;
ATAKAN AKKAYA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A75-846-501, A45-647-111 & A45-647-112)
Immigration Judge: Honorable Alberto J. Riefkohl
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 9, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Opinion Filed July 15, 2008 )
_________
OPINION
_________
PER CURIAM
Petitioners seek review of an order of the Board of Immigration Appeals (“BIA”)
denying their motion to reconsider its previous dismissal as untimely of their appeal from
an order of removal issued by an Immigration Judge (“IJ”). For the following reasons, we
will deny their petition for review.
I.
Petitioners are natives and citizens of Turkey. The lead petitioner is Hayrettin
Akkaya; the others are his children, whose claims are derivative of his. They were
admitted as conditional permanent residents in 1998 by reason of the father’s marriage to
a United States citizen. His wife initially sponsored an I-751 petition to remove the
conditions on petitioners’ residence. In 2001, however, she obtained an annulment of the
marriage in New Jersey state court, which granted it after finding (as she had argued) that
the “marriage was the product of fraud . . . in that [the husband] was proceeding with the
pretended marriage for the sole purpose of securing United States citizenship[.]” (A.68.)
The wife thereafter withdrew her petition, and the government finally terminated
petitioners’ conditional residence status and filed a notice to appear charging them as
removable on that basis under 8 U.S.C. § 1227(a)(1)(D)(i).
In a written decision issued June 29, 2007, and mailed on July 2, 2007, the IJ
found that the New Jersey annulment decree was conclusive and ordered petitioners’
removal to Turkey. Petitioners had 30 days from the date of mailing, or until August 1,
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2007, to appeal that decision to the BIA. See 8 C.F.R. § 1003.38(b); Popal v. Gonzales,
416 F.3d 249, 252 & n.1 (3d Cir. 2005). The BIA received petitioners’ notice of appeal
one day late, on August 2, and it was deemed filed on that day. See 8 C.F.R.
§ 1003.38(c). By order dated August 24, 2007, the BIA dismissed the appeal as untimely.
Petitioners then filed a motion with the BIA to reopen. They conceded that the appeal
was technically late, but argued that (1) the untimeliness should be excused because it
resulted from a clerical error by counsel’s assistant, who mistakenly mailed the notice of
appeal to the wrong address, and (2) the time to appeal should be deemed to run from the
date they actually received the IJ’s order (July 5) instead of the July 2 date of mailing.
The BIA denied the motion by order dated October 23, 2007, and petitioners filed a
petition for review.
II.
We begin by clarifying that the BIA’s October 23 order is the only order before us.
We do not have jurisdiction to review the IJ’s underlying order of removal because
petitioners did not timely appeal that order to the BIA. See Bejar v. Ashcroft, 324 F.3d
127, 132 (3d Cir. 2003). For this reason, we may not and do not consider petitioners’
arguments that the IJ’s decision was erroneous. Nor do we have jurisdiction to review the
BIA’s initial order of August 24 dismissing petitioners’ appeal as untimely, because
petitioners did not file a petition for review in this Court within 30 days of that order. See
Stone v. INS, 514 U.S. 386, 405 (1995) (“[A] deportation order is final, and reviewable,
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when issued. Its finality is not affected by the subsequent filing of a motion to
reconsider.”); Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir. 2007). Petitioners did,
however, timely petition for review of the October 23 order denying their motion to
reopen. Thus, we have jurisdiction to review that order under 8 U.S.C. § 1252(a). See
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). We review the BIA’s denial of a
motion to reopen for abuse of discretion, and will disturb it “only if it was ‘arbitrary,
irrational, or contrary to law.’” Id. (citation omitted). In applying that standard, we
review legal conclusions de novo and review factual determinations for substantial
evidence. See id.1
Petitioners, however, have raised no argument that the BIA abused its discretion in
denying their motion. Instead, they merely repeat the two arguments that they presented
to the BIA. We do not believe that the BIA abused its discretion in rejecting them.
Petitioners’ first argument is that their appeal, due on August 1 and received on August 2,
should be deemed timely because their counsel’s assistant mailed it on July 27 but
mistakenly directed it to the wrong address. The BIA rejected this argument by
explaining that it does not follow a “mailbox rule” and that appeals must actually be
received by the BIA within 30 days of the date on which an IJ mails a written order. The
1
Petitioners captioned their motion before the BIA as one for reopening, but the BIA
treated it as one for reconsideration and petitioners have referred to it as a motion for
reconsideration in all the papers they have filed with this Court. Although motions for
reopening and for reconsideration serve distinct purposes, the standard of review
applicable to both types of motions is the same. See Borges, 402 F.3d at 404.
4
BIA’s understanding of the pertinent regulation is correct. See 8 C.F.R. § 1003.38(c);
Smith v. Conner, 250 F.3d 277, 279 (5th Cir. 2001). The BIA acted within its discretion
in applying the regulation, and petitioners have not cited any error of law, mistake of fact
or legal authority that might suggest otherwise.
Petitioner’s second argument is that the appeal period should not have been
deemed to begin running on July 2, the date on the cover letter enclosing the IJ’s June 29
decision, because there is no evidence of record conclusively showing when the decision
was mailed and petitioners’ counsel did not actually receive it until July 5. The BIA
rejected this argument by explaining that, under 8 C.F.R. § 1003.38(b), the time for
appealing begins to run from the date on which the IJ mails a written decision, not from
the date on which a petitioner receives it. The BIA’s understanding of this regulation too
is correct. In applying it, the BIA must implicitly have found (as it did explicitly in its
initial order dismissing petitioners’ appeal) that the IJ mailed his decision on July 2.
Petitioners appear to argue that that conclusion is not supported by the record, but they are
wrong: the July 2 date on the cover letter supports the BIA’s conclusion that the decision
was mailed on that date. Moreover, “nothing in the record compels the conclusion that
the decision was not mailed on [July 2], as would be required to reverse a factual
determination made by the BIA as to timeliness.” Poole v. Mukasey, 522 F.3d 259, 263
(2d Cir. 2008).
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In sum, the BIA did not act arbitrarily, irrationally or contrary to law in applying
the relevant regulations. Accordingly, petitioners’ petition for review will be DENIED.
6