Elito Santos Mendes v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 25, 2023
• Docket: 23-1066
• Status: Unpublished

Opinion

USCA4 Appeal: 23-1066 Doc: 24 Filed: 07/25/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1066

ELITO MARIKE SANTOS MENDES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted: June 27, 2023 Decided: July 25, 2023

Before NIEMEYER and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Petition dismissed by unpublished per curiam opinion.

Elito Marike Santos Mendes, Appellant Pro Se. Duncan Thomas Fulton, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1066 Doc: 24 Filed: 07/25/2023 Pg: 2 of 2

PER CURIAM:

Elito Marike Santos Mendes, a native and citizen of Cape Verde, petitions for

review of the order of the Board of Immigration Appeals (“Board”) dismissing his untimely

appeal from the immigration judge’s denial of his application for deferral of removal under

the Convention Against Torture and denying to consider the appeal by certification. This

Court lacks jurisdiction to review the Board’s discretionary decision not to certify an

appeal. See Idrees v. Barr, 923 F.3d 539, 542-43 (9th Cir. 2019) (holding that the decision

of whether to certify a claim is committed to agency’s discretion and not reviewable).

Because Mendes did not timely appeal, his remaining claims are unexhausted and will not

be considered by this court. See Poole v. Mukasey, 522 F.3d 259, 264 (2d Cir. 2008)

(joining other circuits to hold that a late appeal to the Board leaves a petitioner’s claim

unexhausted). Accordingly, we dismiss the petition for review. We deny Mendes’ motions

for appointment of counsel and to submit additional evidence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

submissions before the court and argument would not aid the decisional process.

PETITION DISMISSED