Ebony Nasrine Danielle Phillips v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 27, 2019
• Docket: 18-13178
• Status: Unpublished

Opinion

Case: 18-13178 Date Filed: 06/27/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13178 Non-Argument Calendar ________________________

Agency No. A026-701-817

EBONY NASRINE DANIELLE PHILLIPS, a.k.a. Ebony Danielle Beam,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(June 27, 2019)

Before MARTIN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 18-13178 Date Filed: 06/27/2019 Page: 2 of 3

Ebony Phillips, a native and citizen of the United Kingdom, seeks review of

the Board of Immigration Appeals’ (BIA) final order of removal and denial of her

application for adjustment of status pursuant to 8 U.S.C. § 1255. Phillips argues

the Immigration Judge (IJ) and the BIA erred in concluding the IJ lacked

jurisdiction to consider her application for adjustment of status while removal

proceedings were pending against her. She contends that, since the Department of

Homeland Security classified her as an admitted alien in her Notice to Appear, and

not as an arriving alien, the IJ had jurisdiction to consider her application for

adjustment of status, pursuant to 8 C.F.R. §§ 245.2(a)(1), (a)(2)(i), and

1245.2(a)(1)(i).

The Government, in turn, argues that we lack jurisdiction over Phillips’

petition for review because she filed it after the 30-day window to appeal provided

for in 8 U.S.C. § 1252(b)(1) expired. The government notes Phillips’ order of

removal became final on June 27, 2018, when the BIA dismissed her appeal, and

she did not file her petition for review with this Court until July 30, 2018.

We review our own subject matter jurisdiction de novo. Martinez v. U.S.

Att’y Gen, 446 F.3d 1219, 1221 (11th Cir. 2006). Generally speaking, we have

jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252.

However, a petition for review of an order of removal “must be filed not later than

30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). And 2 Case: 18-13178 Date Filed: 06/27/2019 Page: 3 of 3

as we have noted, “[s]ince the statutory limit for filing a petition for review in an

immigration proceeding is ‘mandatory and jurisdictional,’ it is not subject to

equitable tolling.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.

2005) (citing Stone v. INS, 514 U.S. 386, 405 (1995)). In Dakane, we determined

we lacked jurisdiction to consider a petitioner’s challenges to his final order of

removal because the petitioner did not timely file his petition for review with this

Court. Id. Accordingly, we refused to consider his petition to the extent that he

challenged his final order of removal. Id.

We lack jurisdiction over Phillips’ petition for review, because she did not

timely file it. 8 U.S.C. § 1252(b)(1); Dakane, 399 F.3d at 1272 n.3. Moreover, the

aforementioned deadline is not subject to equitable tolling, nor does Phillips argue

that point. Dakane, 399 F.3d at 1272 n.3. Accordingly, we dismiss her petition for

review in its entirety.

PETITON DISMISSED.