Vicente v. Mukasey

Ninth Circuit

Vicente v. Mukasey

316 F. App'x 552

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 23, 2008

DocketNo. 07-70312

StatusPublished

This text of 316 F. App'x 552 (Vicente v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vicente v. Mukasey, 316 F. App'x 552 (9th Cir. 2008).

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Opinion

MEMORANDUM

**

Maria Do Nascimento Vicente, a native and citizen of Portugal, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing as untimely her appeal from an immigration judge’s (“IJ”) removal order. 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 record reflects that the IJ’s decision was rendered on September 25, 2006, that the notice of appeal was therefore due on October 25, 2006, and that it was received by the BIA on October 26, 2006. We cannot say that the BIA improperly dismissed the appeal as untimely, even though it was only one day late. See id. at 722; 8 C.F.R. § 1003.38(b) and (c); see also Matter of Liadov, 23 I. & N. Dec. 990, [553]*553991 (BIA 2006) (an appeal is not deemed filed until it is received by the BIA and the BIA does not observe the “mailbox rule”). Moreover, Vicente has not pointed to the type of “rare circumstances” under which the BIA may excuse late filing. See, e.g., Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir .2005).

In light of our disposition, we need not reach Vicente’s contentions that her waiver of appeal was not knowing and voluntary and that she was deprived of the right to counsel.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

Maria Do Nascimento Vicente, a native and citizen of Portugal, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing as untimely her appeal from an immigration judge’s (“IJ”) removal order. 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 record reflects that the IJ’s decision was rendered on September 25, 2006, that the notice of appeal was therefore due on October 25, 2006, and that it was received by the BIA on October 26, 2006. We cannot say that the BIA improperly dismissed the appeal as untimely, even though it was only one day late. See id. at 722; 8 C.F.R. § 1003.38(b) and (c); see also Matter of Liadov, 23 I. & N. Dec. 990, [553]*553991 (BIA 2006) (an appeal is not deemed filed until it is received by the BIA and the BIA does not observe the “mailbox rule”). Moreover, Vicente has not pointed to the type of “rare circumstances” under which the BIA may excuse late filing. See, e.g., Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir .2005).

In light of our disposition, we need not reach Vicente’s contentions that her waiver of appeal was not knowing and voluntary and that she was deprived of the right to counsel.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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316 F. App'x 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicente-v-mukasey-ca9-2008.

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