Akaris v. Atty Gen USA , 179 F. App'x 146 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-18-2006
Akaris v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5127
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"Akaris v. Atty Gen USA" (2006). 2006 Decisions. Paper 1085.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-5127
____________
SHOKRAN AKARIS,
Petitioner
v.
U.S. ATTORNEY GENERAL, ALBERTO R. GONZALES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A95-350-337)
Immigration Judge Irma Lopez Defillo
____________
Submitted Under Third Circuit LAR 34.1(a)
May 9, 2006
Before: ROTH, FISHER and COWEN, Circuit Judges.
(Filed May 18, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Shokran Akaris petitions for review of the Board of Immigration Appeals’ denial
of her motion to reconsider an earlier ruling. We will deny the petition.
On December 14, 2004, Akaris filed a notice of appeal with the Board, appealing
an immigration judge’s order dated November 8, 2004. The Board ruled, on June 15,
2005, that because December 14 is 36 days after November 8, Akaris’s notice of appeal
was filed outside the 30-day filing period specified by 8 C.F.R. § 1003.38 and was
therefore time-barred. Akaris then filed a motion for reconsideration with the Board,
which the Board denied on October 26, 2005. Akaris timely filed, in this Court, a petition
for review of that denial.
Board denials of motions for reconsideration are reviewable in this Court for
certain legal defects, such as failure by the Board to give an adequate explanation. They
are not reviewable based on the merits of the underlying decision the Board refused to
reconsider. Yet the sole argument Akaris makes in her petition is that her December 2004
appeal should not have been dismissed as untimely. Akaris, in other words, wants us to
examine the Board’s June 2005 decision, in which the Board ruled that the December
2004 appeal was untimely. But Akaris did not petition us for review of the Board’s June
2005 decision. The instant petition seeks review not of the June 2005 decision, but rather
of the Board’s October 2005 denial of Akaris’ motion to reconsider the June decision. If
Akaris wanted a ruling from the United States Court of Appeals for the Third Circuit on
the merits of the June decision, she needed to petition us for review of that decision. She
did not do so.1 And in the petition she did file with us seeking review of the October
1
And the filing period for doing so has long since run. The Supreme Court made it
clear, in Stone v. INS, 514 U.S. 386, 395 (1995), that the filing period for a petition for
2
decision, she does not point to any error in the October decision. She makes, in short, no
legal challenge to the decision presently before us, and instead tries to challenge a
different decision, which is not before us because she never brought it before us.
Because Akaris did not petition us for review of the Board’s June 2005 decision,
we cannot review it here. Because Akaris does not raise any claims of error in the
Board’s October 2005 decision, we deem any such claims waived.
This is not to say that we would find any error in either decision, were either one
properly before us. We see none. The regulation specifying the filing period is
peremptorily worded, and the Board’s application of it here was a sound exercise of its
discretion. Nor did the Board fail to explain its reasons for denying reconsideration. The
caselaw Akaris would rely on is manifestly inapposite, and even the equities are not on
her side: Her attorney states in his brief that he received the immigration judge’s decision
on November 25, 2004. Thus he had, by his own reckoning, eleven days to file a single
piece of paper with an agency located only a few miles from his office.
The petition for review will be denied.
review of a BIA decision by the courts of appeals begins running with the issuance of that
decision, and is not tolled by a subsequent motion for reconsideration filed with the BIA.
3