Prekaj v. INS

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 8, 2004
• Docket: 02-4462
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Prekaj, et al. v. INS No. 02-4462 ELECTRONIC CITATION: 2004 FED App. 0298P (6th Cir.) File Name: 04a0298p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: David H. Paruch, Troy, Michigan, for FOR THE SIXTH CIRCUIT Petitioners. Susan K. Houser, UNITED STATES _________________ DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: David H. Paruch, Troy, VILTON PREKAJ, AGE PREKAJ, X Michigan, for Petitioners. Marion E. Guyton, Richard M. and LEORET PREKAJ, - Evans, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Petitioners, - - No. 02-4462 - _________________ v. > , OPINION - _________________ IMMIGRATION AND - NATURALIZATION SERVICE - SAMUEL H. MAYS, Jr., District Judge. Petitioners seek and JOHN ASHCROFT , - review of an Immigration Judge’s decision denying their Attorney General, - request for asylum, the Board of Immigration Appeals’ Respondents. - (“Board”) decision on April 11, 2002 affirming that decision - on a procedural ground, and the Board’s December 5, 2002 N denial of their untimely motion to reopen. This court has On Petition for Review of an Order of the jurisdiction only over the December 5, 2002 decision. Board of Immigration Appeals. Because the Board did not abuse its discretion by denying an Nos. A75 310 054; A75 310 055; A75 310 056. untimely motion to reopen, we DENY the petition for review.

Argued: July 9, 2004 I. BACKGROUND Petitioners Vilton, Age, and Leoret Prekaj, a husband and Decided and Filed: September 8, 2004 wife and their minor daughter, are natives of the former Republic of Yugoslavia. Vilton Prekaj entered the United Before: KRUPANSKY and GILMAN, Circuit Judges; States on December 20, 1993 as a non-immigrant visitor for MAYS, District Judge.* pleasure. His temporary visa expired on June 19, 1994. Age and Leoret Prekaj entered the United States without valid entry documents on August 8, 1995. On October 31, 1997, the Immigration and Naturalization Service (“INS”) served * The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting by designation.

1 No. 02-4462 Prekaj, et al. v. INS 3 4 Prekaj, et al. v. INS No. 02-4462

Vilton and Age Prekaj with Notices to Appear, charging them that failure, citing 8 C.F.R. § 3.1(d)(2)(i)(D), which with removal under the Immigration and Nationality Act.1 authorizes summary dismissal if the appellant indicates on the notice of appeal form “that he or she will file a brief or Petitioners sought asylum. After conducting hearings that statement in support of the appeal and, thereafter, does not concluded on April 10, 2000, Immigration Judge Miriam K. file such brief or statement, or reasonably explain his or her Mills issued a decision denying Petitioners relief on May 3, failure to do so, within the time set for filing.” The Board 2001. Petitioners filed an appeal with the Board on May 17, also stated, “[U]pon review of the record, we are not 2001. The Notice of Appeal form included a place for persuaded that the Immigration Judge’s ultimate resolution of Petitioners to indicate whether they would “file a separate this case was in error.” written brief or statement in addition to the ‘Reason(s) for Appeal’ written above or accompanying this form.” The form On October 1, 2002, Petitioners filed a motion to reopen also included the statement: “WARNING: Your appeal may their removal proceeding with the Board. The motion stated be summarily dismissed if you indicate in item #6 that you that Petitioners “sought assistance of counsel and counsel was will file a separate written brief or statement and, within the unable to complete the briefing on time.” On December 5, time set for filing, you fail to file the brief or statement and do 2002, the Board denied the motion to reopen on the basis that not reasonably explain such failure.” The Notice of Appeal it was untimely. Its order stated: was signed by Petitioners’ counsel, David Paruch. It stated, as reasons for appeal, the same reasons raised in the present PER CURIAM. The motion to reopen has been filed out petition.2 of time and will be denied. The final order in these proceedings was entered by the Board on April 11, 2002. Although Petitioners checked the box indicating that they Pursuant to 8 C.F.R. § 3.2(c)(2), a motion to reopen in would file a separate brief, they failed to do so. On April 11, any case previously the subject of a final decision by the 2002, the Board summarily dismissed the appeal because of Board must be filed no later than 90 days after the date of that decision. In the instant case, a motion to reopen would have been due on or before July 10, 2002. The 1 record reflects, however, that the Board did not receive The INS ceased to exist as an independent agency on March 1, 2003, when its functions were tra nsferred to the Department of Homeland the motion until October 1, 2002. The motion to reopen Security under the H ome land S ecurity A ct of 20 02. The proper was therefore filed out of time. respondent is the Attorney General of the United States. See 8 U.S.C. §1252 (b)(3). In her motion, the respondent requests that the Board consider her “late filed” brief. As the respondent has 2 Petitioners argued that the Immigration Judge abused her discretion failed to present adequate reasons to support reopening by (1) misconstruing testimony about incidents of persecution, (2) finding and consideration of the brief, the motion will be denied. that Petitioners had not experienced past persecution, (3) finding that Petitioners do not reasonably fear persecution because of changed country On December 27, 2002, Petitioners filed a petition seeking conditions, and (4) denying P etitioners’ requests for asylum and withholding of deportation and for relief under the Co nven tion against review of the Board’s December 5th decision. This court has Torture. They also a rgued that the delay be tween the conclusion of the jurisdiction over the petition for review under 8 U.S.C. hearings on April 10, 2000 and the date the decision was issued (May 3, § 1252(b)(1). 2001) caused the Im migration Judge to forget portions of the testimo ny, resulting in a denial of their due pro cess rights. No. 02-4462 Prekaj, et al. v. INS 5 6 Prekaj, et al. v. INS No. 02-4462

II. ANALYSIS the merits of the underlying order of deportation, because the petition for review is not timely as to that order.”) A. Scope of this Court’s Review The petition for judicial review, filed with this court Petitioners seek review of three decisions: (1) the December 27, 2002, is timely only as to the Board’s Immigration Judge’s May 3, 2001 decision denying asylum, December 5, 2002 denial of Petitioners’ motion to reopen the (2) the Board’s April 11, 2002 decision denying Petitioners’ case. We therefore limit our review to that decision, applying appeal from the Immigration Judge’s decision, and (3) the the abuse of discretion standard. See INS v. Doherty, 502 Board’s December 5, 2002 decision denying Petitioners’ U.S. 314, 324 (1992). The denial of a motion to reopen is a motion to reopen the case. This court has jurisdiction to final order subject to judicial review. Zheng v. Ashcroft, 89 consider only the third decision, the Board’s December 5, Fed. Appx. 76, 77, 2004 WL 345601, at *1 (9th Cir. Feb. 24, 2002 decision declining to reopen the case. 2004). First, we do not review the Immigration Judge’s decision. B. The Board’s December 5 Decision Was Not an Abuse There is “widespread consensus” that, in 8 U.S.C. of Discretion § 1252(a)(1), Congress has granted the courts power to review only “final order[s]” of removal. Abdulai v. Ashcroft, The only remaining issue is whether the Board abused its 239 F.3d 542, 548 (3d Cir. 2001) (quoting the statute). discretion by denying Petitioners’ motion to reopen because “Because an alien facing removal may appeal to the BIA as it was untimely. The motion was filed almost three months of right, and because the BIA has the power to conduct a de outside the ninety-day window for filing such motions set novo review of [Immigration Judge] decisions, there is no forth in 8 C.F.R. § 3.2(c)(2) and later codified at 8 U.S.C. ‘final order’ until the BIA acts.” Id. at 548-49 (citing Castillo- § 1229a(c)(6)(C)(i). See Ekimian v. INS, 303 F.3d 1153, 1156 Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir. 1991)). (9th Cir. 2002). Second, we do not review the Board’s April 11, 2002 denial Petitioners argue that the Board “cannot summarily deny of Petitioners’ appeal. The statute providing for judicial reopening based on cursory and speculative determinations.” review, 8 U.S.C. § 1252(b)(1), states that “[t]he petition for (Petitioners’ Brief at 23.) They cite the Second Circuit case review must be filed not later than 30 days after the date of Zhao v. United States Department of Justice, 265 F.3d 83 (2d the final order of removal.” That statutory time limit is “both Cir. 2001), in support of their argument. In Zhao, the Second mandatory and jurisdictional.” Martinez-Serrano v. INS, 94 Circuit reviewed the Board’s denial of a timely motion for F.3d 1256, 1258 (9th Cir. 1996) (discussing previous version reconsideration, which the Board had construed as a motion of statute; declining to consider underlying denial of appeal to reopen. The court stated that the Board abuses its and considering only denial of untimely motion to reopen). discretion where its decision “provides no rational Petitioners did not seek judicial review of the April 11, 2002 explanation, inexplicably departs from established policies, is decision within thirty days of its issuance. Therefore, the devoid of any reasoning, or contains only summary or court lacks jurisdiction to consider Petitioners’ objections to that decision. See, e.g., Flores v. Ashcroft, 76 Fed. Appx. 177, 2003 WL 22203779, at *1 (9th Cir. Sept. 15, 2003) (“We lack jurisdiction to consider Flores’s contentions regarding No. 02-4462 Prekaj, et al. v. INS 7

conclusory statements.” Id. at 93 (citations omitted).3 The court remanded the case to the Board, holding that its decision was not adequately explained. Id. at 96-97. In this case, by contrast, the Board’s decision was neither conclusory nor devoid of reasoning. It is undisputed that the motion to reopen was filed outside the ninety-day period. Rather than departing “inexplicably” from established policies, the decision adheres to the long-established policy of enforcing statutory and regulatory deadlines. Petitioners have cited no authority to the effect that the Board abuses its discretion by denying an untimely motion. It was not an abuse of discretion for the Board to enforce the deadline. See INS v. Abudu, 485 U.S. 94, 111 (1988) (“In passing on the sufficiency of [a motion to reopen], the BIA is entitled to attach significance to its untimeliness....”); Flores-Lima v. Ashcroft, 97 Fed. Appx. 786, 787, 2004 WL 1197418, at *1 (9th Cir. May 10, 2004) (Board did not abuse its discretion in denying motion to reopen on grounds of untimeliness). III. CONCLUSION For the foregoing reasons, the petition for review is DENIED.

3 As in this case, the court con sidered only the B oard ’s decisio n in denying the mo tion to re consider/re ope n. Id. at 89-90 (stating that “the appeal before us brings up for review only the Board ’s denial of the motion to reconsider”; declining to consider Zhao’s assertions that he did not receive due process at his hearing “[b]ecause we are precluded from passing on the merits of the underlying exclusion proceedings.”)