Prekaj v. INS

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.”)