Saitoska v. Atty Gen USA , 163 F. App'x 105 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-6-2006
Saitoska v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3459
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Saitoska v. Atty Gen USA" (2006). 2006 Decisions. Paper 1785.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1785
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3459
NURIJE SAITOSKA,
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General
of the United States
Respondent
No. 04-3460
MAFI KUPI,
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General
of the United States
Respondent
*Substituted pursuant to Rule 43c, F.R.A.P.
On Appeal from Orders entered by
The Board of Immigration Appeals
No. A95-144-576/5
Submitted Under Third Circuit LAR 34.1(a)
November 15, 2005
Before: BARRY, and AMBRO, Circuit Judges
POLLAK**, District Judge
(Filed January 6, 2006)
OPINION
AMBRO, Circuit Judge
This is an immigration case in which petitioners, Mafi Kupa, and his wife, Nurije
Saitoska, seek review of a decision of the Board of Immigration Appeals (BIA)
summarily dismissing their appeal for failure to file an appellate brief concerning an
immigration judge’s decision denying their requests for asylum, withholding of removal,
and protection pursuant to the Convention Against Torture (CAT). For the reasons
provided below, we affirm.
Kupa and Saitoska are natives and citizens of Macedonia who entered the United
States at Detroit, Michigan, on April 20, 2001. On August 2, 2001, Kupa filed
an application for asylum, including his wife and son, Argjent, as derivative applicants.
Kupa claimed that he had been mistreated in Macedonia due to his nationality,
**Honorable Louis H. Pollak, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
membership in a particular social group, and political opinion.
2
The Government agency then charged with such matters—the Immigration and
Naturalization Service (“INS”)—placed Kupa and Saitoska in removal proceedings on
October 1, 2001, charging that they had entered the United States without being admitted
or paroled by an immigration officer. At an April 4, 2002, master calendar hearing,
petitioners admitted the charges as amended to reflect the correct date and place of their
entry into the United States, and conceded removability. They also indicated an intent to
seek asylum, withholding of removal, and CAT protection.
An immigration judge (IJ) conducted a merits hearing on March 3, 2003. On
March 6, 2003, the IJ issued an oral decision denying the application for asylum,
withholding of removal, and CAT protection, and ordered that petitioners be removed to
Macedonia.1 On July 27, 2004, the BIA summarily dismissed petitioners’ appeal, noting
that they had elected in their notice of appeal to submit a written brief but had failed to do
so. Shortly thereafter, Kupa filed a motion to reconsider, and included a written
statement from his counsel explaining that the brief had been timely filed, but that it was
probably attached to the wrong case. Included with his motion to reconsider was Kupa’s
brief arguing that the IJ applied the wrong standard of proof.
Despite the pending and timely filed motion to reconsider, on August 25, 2004,
Kupa and Saitoska separately filed petitions for review with this Court, along with
motions to stay removal. On November 9, 2004, we denied the motions to stay removal.
On November 19, 2004, the BIA granted petitioners’ motion to reconsider, reviewed their
1
The IJ also issued a written decision on April 4, 2005.
3
appeal on the merits, and upheld the IJ’s adverse credibility determination. On December
15, 2004, we consolidated petitioners’ petitions for review of the Board’s July 27, 2004
order.
The Government contends that our Court lacks jurisdiction to review the
consolidated petitions for review. We agree. As noted above, prior to seeking review of
the BIA’s July 27, 2004 order, petitioners filed a motion to reconsider with the BIA,
arguing that, contrary to the BIA’s July 27 order, they had in fact timely filed an appellate
brief. As noted, on November 19 the BIA granted reconsideration and reinstated
petitioners’ appeal to it, but then affirmed their appeals on the merits. Petitioners did not
petition for review of the BIA’s November 19 decision. Thus, while we had jurisdiction
to review the BIA’s July 27 summary dismissal order, that decision was rendered moot by
the BIA’s November 19 final order.
The only issue before us in a review of the BIA’s July 27 decision would have
been whether the BIA properly exercised its discretion in summarily dismissing the
petitioners’ appeal for failure to file an appellate brief. However, that issue is no longer
in controversy, as the BIA has already decided it in petitioners’ favor. Therefore, we
dismiss the consolidated petitions for review of the BIA’s July 27 order as moot.
Moreover, because the petitioners have not petitioned for review of the BIA’s merits
denial of their appeal (the November 19 order), we have no jurisdiction to review that
ruling. See 8 U.S.C. § 1252(b)(1).
4
5