The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0356p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
REHBY YOUSSIF ABDEL MALAK,
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-
-
No. 04-3434
v.
,
>
ALBERTO GONZALES, Attorney General, -
Respondent. -
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On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A74 711 265.
Argued: July 28, 2005
Decided and Filed: August 19, 2005
Before: SILER and DAUGHTREY, Circuit Judges; MARBLEY, District Judge.*
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COUNSEL
ARGUED: Saher J. Macarius, LAW OFFICES OF SAHER J. MACARIUS, Framingham,
Massachusetts, for Petitioner. Margot L. Nadel, U.S. DEPARTMENT OF JUSTICE, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for Respondent. ON BRIEF: Saher J.
Macarius, LAW OFFICES OF SAHER J. MACARIUS, Framingham, Massachusetts, for Petitioner.
Margot L. Nadel, Anthony W. Norwood, U.S. DEPARTMENT OF JUSTICE, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
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OPINION
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SILER, Circuit Judge. Rehby Youssif Abdel Malak, an Egyptian citizen and native, seeks
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing as untimely his BIA
appeal. For the reasons discussed hereafter, Malak’s petition is DENIED.
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by
designation.
1
No. 04-3434 Malak v. Gonzales Page 2
BACKGROUND
Malak entered the United States as a visitor in October 1998. The following year, after
exceeding his authorized stay, he was placed in removal proceedings. Malak alleged that he was
persecuted in Egypt because of his Christian faith, and he sought relief in the form of asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”). On
September 15, 2000, the Immigration Judge (“IJ”) determined that Malak had failed to meet his
burden to establish religious persecution.
Malak’s notice of appeal was required to be filed on or before Monday, October 16, 2000.
See 8 C.F.R. § 1003.38. On Thursday, October 12, 2000, Malek’s attorney mailed the notice to the
BIA by U.S. Express Mail and sent a copy to the INS District Counsel by first class mail. The notice
was to be delivered to the BIA before noon on Friday, October 13, 2000, to meet the Monday filing
deadline. The BIA did not receive this notice, however. Malak did not realize that the notice had
not been delivered until June 2002, when his attorney called the BIA to inquire about the status of
the appeal.
In July 2002, Malak submitted a copy of the appeal documents that were mailed in October
2000, an October 2000 mail receipt, a letter from the U.S. Postal Service (“USPS”) that confirmed
the mail receipt was valid, and a motion to accept the appeal by certification or to deem the notice
timely filed.
The BIA dismissed Malak’s appeal as untimely, but it did not respond to Malak’s request
that it take jurisdiction of his appeal by certification. In its decision, the BIA observed that Malak’s
notice of appeal was filed approximately 21 months after the deadline. Although it acknowledged
that Malak submitted evidence that he had mailed the notice on October 12, 2000, for delivery on
October 13, 2000, the BIA emphasized that Malak had failed to provide “an explanation for his
excessive delay in notifying [the BIA] of [its] failure to receive his Notice of Appeal.” The BIA
noted that Malak’s failure to receive a receipt should have made him aware that the BIA had not
received his notice, and the almost two-year delay was “simply too long.”
ANALYSIS
This court has not identified the standard under which the BIA’s dismissal of an untimely
appeal should be reviewed. In Anssari-Gharachedagly v. INS, 246 F.3d 512, 514 (6th Cir. 2000),
we observed that “review for abuse of discretion may be most appropriate,” although we concluded
that identification of the correct standard was unnecessary in that case because the petition would
fail even under a de novo standard. Similarly, under either abuse of discretion or de novo review,
we would deny Malak’s petition.
Malak argues that he complied with regulatory filing requirements by mailing the notice of
appeal. A notice is not considered to be filed until it is received by the BIA, however. See 8 C.F.R.
§ 1003.38(c). The BIA may consider an untimely appeal if, for example, “extraordinary or unique
circumstances interfered with timely filing.” Assari-Gharachedaghy, 512 F.3d at 515 (quotation
omitted). As this court has observed, however, “neither the Postal Service’s provision of incorrect
information nor its failure to deliver the notice on time constitutes an extraordinary circumstance
that would justify intervention by this court into the Board’s exercise of discretion.” Id. The BIA’s
Practice Manual also emphasizes that “[p]ostal or delivery delays do not affect existing deadlines,”
and parties should anticipate any delay, “whether the filing is made through first class mail, priority
mail, or any overnight or other guaranteed delivery service.” BIA Practice Manual, Chapter
3.1(b)(iv).
Furthermore, the BIA routinely issues receipts for notices of appeal. The BIA Practice
Manual provides that a party may call the BIA for information regarding an appeal if he or she has
No. 04-3434 Malak v. Gonzales Page 3
not receive a filing receipt within fifteen days. BIA Practice Manual, Chapter 3.1(d)(i). Malak
acknowledged that he did not receive a filing receipt, yet he did not call the BIA to verify that his
notice had been filed until nearly two years later.
While Malak contends that the BIA is imposing an additional duty upon him by requiring
that he ensure the notice be received by the BIA, he fails to acknowledge that regulations provide
that a notice is filed only when the BIA receives it. The BIA’s adherence to that rule does not
impose a new obligation upon Malak. It was not erroneous for the BIA to summarily dismiss
Malak’s appeal as untimely.
Malak’s petition for review is DENIED.