Jose Sady Fayad-Rodriguez v. U.S. Atty. Gen. , 203 F. App'x 291 ( 2006 )


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  •                                                            [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                      FILED
    ________________________          U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    October 31, 2006
    No. 06-11543                    THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    BIA No. A79-342-225
    JOSE SADY FAYAD-RODRIQUEZ,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    _________________________
    (October 31, 2006)
    Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
    PER CURIAM:
    Petitioner Jose Sady Fayad-Rodriquez (“Fayad”), through counsel, petitions
    for review of the Board of Immigration Appeal’s (“BIA”) order dated February 9,
    2005, denying his motion to reopen in which he sought to reapply for asylum,
    withholding of removal under the Immigration and Nationality Act (“INA”), and
    protection under the United Nations Convention Against Torture (“CAT”), §§ 208
    of the INA, codified at 
    8 U.S.C. §§ 1158
    , 1231; and 
    8 C.F.R. § 208.16
    (c).1 Prior to
    that decision, the BIA had issued two orders as to Fayad. First, on October 3,
    2005, the BIA had affirmed the Immigration Judge’s (“IJ’s”) final removal order.
    Second, on December 5, 2005, the BIA had denied a subsequent motion for
    reconsideration filed by Fayad. Fayad filed no petition for review following either
    of these earlier decisions.
    Fayad filed only one petition for review to this court, which was dated
    March 7, 2006, but referenced the orders dated October 3, 2005, December 5,
    2005, and February 9, 2006.
    Fayad now argues that the IJ abused its discretion by (1) denying his
    application for asylum, withholding of removal, and CAT protection; (2) finding
    1
    On May 11, 2005, Congress passed, and the President signed into law, the REAL ID Act
    of 2005, which amended the INA’s rules governing judicial review. See REAL ID Act of 2005,
    Pub.L. 109-13, 
    119 Stat. 231
    . The Act made the permanent rules applicable to all petitions for
    review, providing that any petition for review “filed under former section 106(a) of the
    Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252 note)) shall be
    treated as if it had been filed as a petition for review under section 242 of the Immigration and
    Nationality Act (8 U.S.C. 1252).” 
    Id.
     § 106(d), 
    119 Stat. 231
    , 311.
    2
    that he was not persecuted based upon his political opinion; and (3) failing to make
    a specific credibility determination.
    I.
    Before we can proceed on the merits of the petition for review, we “must
    first consider whether we have subject matter jurisdiction to hear the petition at
    all.” Resendiz-Alcaraz v. U.S. Attorney Gen., 
    383 F.3d 1262
    , 1266 (11th Cir.
    2004). We “review subject matter jurisdiction de novo.” Gonzalez-Oropeza v.
    U.S. Attorney Gen., 
    321 F.3d 1331
    , 1332 (11th Cir. 2003).
    An alien seeking review of a BIA decision must file a petition for review
    within 30 days of the BIA’s final order of removal. See INA § 242(b)(1), 
    8 U.S.C. § 1252
    (b)(1) (2000). A petition for review is considered to be filed when it is
    received by the clerk of the court. Fed. R. App. P. 25(a)(2)(A). “[T]he filing of a
    motion to reopen or a motion to reconsider shall not stay the execution of any
    decision made in the case.” 
    8 C.F.R. § 1003.2
    (f). The Supreme Court has ruled
    that the filing of a motion with the BIA does not affect the finality of the order and
    “does not toll the time to petition for review.” Stone v. INS, 
    514 U.S. 386
    , 394-95,
    
    115 S. Ct. 1537
    , 1544, 
    131 L. Ed. 2d 465
     (1995).
    For us to have jurisdiction to review the IJ’s findings, Fayad would have had
    to file a notice of appeal from the BIA’s October 3, 2005, order affirming the IJ’s
    3
    decision. See INA § 242(b)(1), 
    8 U.S.C. § 1252
    (b)(1) (2000); Stone, 
    514 U.S. at 394-95
    , 
    115 S.Ct. at 1544
    . An effective petition for review would therefore have
    had to be filed, at the latest, on January 4, 2006, or 30 days after the December 5,
    2005, decision. See INA § 242(b)(1), 
    8 U.S.C. § 1252
    (b)(1) (2000). However, the
    only petition for review was filed on March 7, 2006. Despite the fact that the
    petition referenced the decision dated October 3, 2005, as well as those dated
    December 5, 2005, and February 9, 2006, it was untimely as to all except for the
    February 9, 2006, decision. We therefore lack jurisdiction to review the merits of
    the earlier two decisions. See Stone, 
    514 U.S. at 394-95
    , 
    115 S.Ct. at 1544
    ; INA
    § 242(b)(1), 
    8 U.S.C. § 1252
    (b)(1) (2000).
    Based upon the foregoing, we dismiss the petition to the extent that the
    arguments presented do not relate to the denial of the motion to reopen.
    II.
    Issues not argued on appeal are deemed abandoned and we need not consider
    them. Mendoza v. U.S. Attorney General, 
    327 F.3d 1283
    , 1286 n.3 (11th Cir.
    2003).
    As previously noted, Fayad properly petitioned for review only as to the
    BIA’s February 9, 2006, denial of his motion to reopen. He now argues that the IJ
    abused his discretion in denying his application for asylum, withholding of
    4
    removal, and CAT protection and ordering him removed. Because Fayad advances
    no argument regarding the BIA’s denial of the relevant motion on appeal, he has
    abandoned any such challenge. See Mendoza, 
    327 F.3d at
    1286 n.3. We,
    therefore, deny the petition for review in this respect.
    PETITION DISMISSED IN PART AND DENIED IN PART.
    5