Rosas-Jaimes v. Gonzales

135 F. App'x 994

Opinion

MEMORANDUM

**

Filiberto Rosas-Jaimes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing as untimely his appeal of an immigration judge’s (“IJ”) denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether the BIA had jurisdiction over an untimely appeal. Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993). We deny the petition for review.

The time limit for filing a notice of appeal is mandatory and jurisdictional. See 8 C.F.R. § 1003.38(b) (a notice of appeal must be filed within 30 calendar days from the IJ’s oral decision or mailing of a written decision); Da Cruz v. INS, 4 F.3d 721, 722 (9th Cir.1993). The record reflects that the IJ’s written decision was mailed on April 11, 2003 to Rosas-Jaimes’ attorney’s address of record, and that his notice of appeal to the BIA was filed on July 28, 2003. Accordingly, the BIA did not err in dismissing the appeal as untimely. See 8 C.F.R. § 1003.38(b). Rosas-Jaimes’ contention that the BIA’s dismissal of his appeal violated his due process rights lacks merit.

Because the record reflects the IJ’s written decision was mailed to the address of record, yet Rosas-Jaimes’ attorney failed to timely file a notice of appeal with the BIA, the mandate is stayed for 90 days from the date of this disposition to allow Rosas-Jaimes the opportunity to secure new counsel and to file a motion to reopen with the BIA based on ineffective assistance of counsel. See Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir.1999).

The clerk is directed to serve a copy of this memorandum disposition on petitioner, Filiberto Rosas-Jaimes, 2758 Sussex Drive, San Jose, CA 95127.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.