Pascual-Gomez v. INS ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1280
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Albertina Pascual-Gomez, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Immigration
* and Naturalization Service
Immigration and Naturalization *
Service, U.S. Department of Justice, * [UNPUBLISHED]
*
Respondent. *
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Submitted: March 6, 2000
Filed: March 28, 2000
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Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Albertina Pascual-Gomez, a Guatemalan citizen, petitions for review of a final
order of the Board of Immigration Appeals (BIA) dismissing as untimely her appeal
from the Immigration Judge’s (IJ) denial of her applications for asylum and withholding
of deportation. For reversal petitioner argues her notice of appeal to the BIA was
timely mailed, with the delay attributable to intervening causes, and the IJ erred in
denying her applications. For the reasons discussed below, we deny the petition for
review.
The record reveals that the IJ issued an oral decision on August 4, 1997, after
a hearing; that on August 29, Pascual-Gomez sent to the BIA her Form EOIR-26
Notice of Appeal; and that the BIA received her notice of appeal on September 5, two
days after the filing deadline had passed. We conclude the BIA properly dismissed
Pascual-Gomez’s appeal as untimely. See 8 C.F.R. § 3.38(b), (c) (1997) (notice of
appeal from IJ’s decision (Form EOIR-26) shall be filed directly with BIA within 30
calendar days after stating of IJ’s oral decision; date of filing is date BIA receives
notice).
Petitioner’s argument that her notice of appeal was postmarked before the
deadline but delayed by the United States Postal Service is without merit. See
Talamantes-Penalver v. INS, 51 F.3d 133, 136-37 (8th Cir. 1995). Absent unique
circumstances--and none are present here--the time limit for filing a notice of appeal
with the BIA is mandatory and confers on the BIA jurisdiction to hear an appeal. See
Atiqullah v. INS, 39 F.3d 896, 898 (8th Cir. 1994) (per curiam). Pascual-Gomez’s
notice of appeal was filed more than thirty days after the IJ stated his oral decision,
leaving the BIA without jurisdiction to hear her appeal. See Talamantes-Penalver v.
INS, 51 F.3d at 137. We may not review the merits of Pascual-Gomez’s claims
because they were not presented to the BIA. See Margalli-Olvera v. INS, 43 F.3d 345,
350 (8th Cir. 1994).
Accordingly, we deny the petition for review.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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