Balane v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 31, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

EMMANUEL LAYLO BALANE and
PRYMROSE MORALES BALANE,

Petitioners,
No. 04-9596
v. (BIA Nos. A78-354-380
& A78-354-381)
ALBERTO R. GONZALES, *
Attorney (Board of Immigration Appeals)
General,

Respondent.

ORDER AND JUDGMENT **

Before EBEL, McKAY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
oral argument.

Petitioners are aliens from the Philippines. After being informed of the

institution of removal proceedings against them, they applied for a cancellation of

removal. On March 13, 2003, the immigration law judge denied their application.

Petitioners appealed that decision to the Board of Immigration Appeals (Board).

On April 27, 2004, the Board summarily affirmed the immigration law judge’s

decision. Thereafter, on August 5, 2004, Petitioners filed a motion with the

Board to reconsider its summary affirmance. The Board denied Petitioners’

motion because it was untimely. Petitioners now appeal the Board’s denial of that

motion. 1

We review the Board’s denial of a motion to reconsider for an abuse of

discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).

The Board “abuses its discretion when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Infanzon v.

Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (internal quotation marks and

citation omitted).

1
Petitioners’ argument on appeal goes to the merits of their original
cancellation of removal. However, we will not consider that argument because
our jurisdiction is limited to review of the Board’s denial of Petitioners’ motion
to reconsider. See 8 U.S.C. § 1252(b)(1) (2000); Stone v. INS, 514 U.S. 386, 395,
405-06 (1995).

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 There is nothing in this case indicating that the Board abused its discretion

when it denied Petitioner’s motion to reconsider. In its order, the Board

explained, “the motion to reconsider was filed out of time.” A.R. at 3. The order

outlined the time schedule that Petitioners had for filing such a motion.

Petitioners had thirty days to file a motion for reconsideration after the Board’s

order was entered on April 27, 2004. Petitioners did not file their motion until

August 5, 2004. 2

Based on our review of the relevant law and facts surrounding this issue,

we hold that the Board did not abuse its discretion when it denied Petitioners’

motion to reconsider.

Accordingly, the Board’s decision is AFFIRMED.

Entered for the Court

Monroe G. McKay
Circuit Judge

2
The Board acknowledged its error “in forwarding its July 12, 2004
rejection notice to the wrong address.” A.R. at 3. However, this is not relevant
to our holding because, even if we were to recognize Petitioners’ first filing as
valid, it was nonetheless untimely when it was sent on July 7, 2004.

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