Sharafi, Musart N. v. Gonzales, Alberto R. , 177 F. App'x 503 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2006
Decided May 2, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-2388
MUSARAT N. SHARAFI, Petition for Review of the Board of
Petitioner, Immigration Appeals
v. No. A76-772-198
ALBERTO R. GONZALES,
Respondent.
ORDER
Musarat Sharafi, a native and citizen of Pakistan, sought adjustment of
status before an immigration judge (“IJ”) in 2001. The IJ denied her request and
ordered her removed from the United States. Later she moved to reopen the
proceedings, claiming that she was prejudiced at her hearing by ineffective
assistance of counsel. The IJ denied the motion largely on the ground that she
failed to satisfy one of the requirements for establishing ineffective assistance of
counsel under In re Lozada, 19 I. & N. Dec. 637 (BIA 1988): she did not show that
she had filed a complaint against her former counsel with an appropriate
disciplinary authority. Sharafi appealed this decision to the Board of Immigration
Appeals (“BIA”), which affirmed without opinion in 2003. More than a year later,
Sharafi moved to reopen proceedings before the BIA, asserting that she had “new
No. 05-2388 Page 2
and material evidence” to support her application for adjustment of status. The
BIA denied her motion to reopen as untimely, and then rejected the arguments she
advanced in a motion to reconsider. Sharafi next sought our review of “the
underlying orders in this cause.” After oral argument, we ruled from the bench that
the petition would be denied. We now supplement our ruling with this order.
A petition for review must be filed within 30 days of the decision to be
reviewed, see 8 U.S.C. 1252(b)(1); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.
2006); see Stone v. INS, 514 U.S. 386, 395 (1995) (holding that motion to reconsider
does not toll time for review of underlying order), but Sharafi failed to comply with
the deadline as to any of the BIA’s rulings except its order denying her motion to
reconsider. Our review is confined to consideration of that denial; all we can do is
determine whether she gave the BIA reason to reconsider. Rehman v. Gonzales,
441 F.3d 506, 508 (7th Cir. 2006); Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir.
2004). Sharafi, however, fails even to mention the denial of the motion to
reconsider in the discussion section of her brief; thus she has waived her right to
review of that decision. See Asere, 439 F.3d at 381. Only after the government
pointed out this omission did she attempt to address in her reply brief the denial of
the motion to reconsider, but arguments that appear for the first time in a reply
brief are no less waived. See, e.g., United States v. Alhalabi, No. 05-2209, 2006 WL
910331, at *4 (7th Cir. Apr. 11, 2006); Harper v. Vigilant Ins. Co., 433 F.3d 521, 528
(7th Cir. 2005); El-Gharabli v. INS, 796 F.2d 935, 940 (7th Cir. 1986) (per curiam).
At oral argument, moreover, counsel again ignored the denial of the motion to
reconsider and instead attacked the denial of the underlying motion to reopen. We
invited counsel to explain how, consistent with the Supreme Court’s decision in
Stone, we might consider his arguments, but he refused to do so. Because Sharafi
failed to obtain judicial review of the BIA’s denial of her motion to reopen and
because she has failed to present any argument concerning the denial of her most
recent motion to reconsider, there is no argument properly before us. Stone, 514
U.S. at 397; see Rehman, 441 F.3d at 508; Asere, 439 F.3d at 380; Ajose v. Gonzales,
408 F.3d 393, 394-95 (7th Cir. 2005). Accordingly, we DENY the petition for review.