FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 30, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
HAPPY ANAKOTTA,
Petitioner,
v. No. 07-9552
(Petition for Review)
MICHAEL B. MUKASEY,
Attorney General, *
Respondent.
ORDER AND JUDGMENT **
Before McCONNELL, ANDERSON, and BRORBY, Circuit Judges.
On November 2, 2005, an immigration judge denied petitioner Happy
Anakotta’s requests for asylum, restriction on removal, and protection under the
*
On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Convention Against Torture. Under 8 C.F.R. § 1003.38, petitioner had thirty
days, or until December 2, 2005, in which to file an appeal to the Board of
Immigration Appeals (BIA or Board). On December 1, 2005, one day before it
was due, petitioner’s counsel sent a notice of appeal to the BIA via FedEx’s
“priority overnight” service. The notice of appeal did not arrive at the BIA until
December 5, 2007. 1
After the BIA dismissed the appeal as untimely, petitioner filed a motion to
“reopen/reconsider.” Admin. R. at 8. Because petitioner failed to identify any
error of fact or law, the Board denied the motion, and this petition for review
followed. We deny the petition.
A motion to reopen seeks to present evidence that “is material
and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also
8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other
hand, is available to raise errors of fact or law committed by the BIA
in its prior decision, and must be supported by pertinent authority.
8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1).
Mahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir. 2005). Because
petitioner did not present previously unavailable material evidence in support of
his motion, the BIA properly treated it as a motion to reconsider.
We review the BIA’s denial of petitioner’s motion to reconsider for an
abuse of discretion. Belay-Gebru v. INS, 327 F.3d 998, 1000 n. 5 (10th Cir.
1
“[T]he Board does not observe the ‘mailbox’ rule.” In re Liadov, 23 I. &
N. Dec. 990, 991 (2006).
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2003); cf. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (same with
regard to motion to reopen); 8 C.F.R. § 1003.2(a) (providing that “[t]he decision
to grant or deny a motion to reopen or reconsider is within the discretion of the
Board”). “We will reverse only if the BIA’s decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Mahamat,
430 F.3d at 1283 (quotation omitted) (reviewing motion to reopen). 2
As mentioned above, petitioner had thirty days from November 2, 2005, in
which to file his notice of appeal. “The BIA’s deadline is . . . subject to
exceptions in ‘rare circumstances,’ even when the notice of appeal does not
actually arrive before the deadline.” Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir.
2005); see also BIA Practice Manual, Ch. 3.1(b)(iv), at 34 (rev. Nov. 6, 2007),
available at http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm. (noting
that delays in delivery do not affect filing deadlines “except in rare
circumstances”); see also id., Ch. 3.1(a)(iv) at 32 (rev. July 30, 2004) (“[F]ailure
of a courier or overnight delivery service does not excuse parties from meeting
filing deadlines.”).
On appeal, petitioner argues that the BIA abused its discretion when it
denied his motion to reopen/reconsider as untimely without considering the
2
Because petitioner did not appeal the BIA’s final order of removal to this
court within the thirty days provided, see 8 U.S.C. § 1252(b)(1), we review only
the BIA’s denial of his motion to reconsider.
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unique and extraordinary circumstances surrounding the failure of FedEx to
comply with its guaranteed-delivery promise. We disagree with petitioner’s
characterization of the BIA’s action. It is clear from its recitation of the pertinent
facts in its order denying the motion for reconsideration that the BIA considered
the circumstances surrounding the untimeliness of petitioner’s notice of appeal.
After that consideration, however, the BIA, citing In re Liadov, 21 I. & N. Dec.
990 (2006), concluded that “short delays in delivery are to be expected and do not
warrant consideration of an untimely appeal.” Admin. R. at 2. The BIA did not
abuse its discretion in so concluding.
Petitioner cites cases in which circuit courts have remanded to the BIA to
consider, in the first instance, whether the petitioners had established the unique
or extraordinary circumstances sufficient to justify the discretionary exercise of
jurisdiction over late appeals where it was clear that the BIA had completely
failed to exercise its discretion. Khan v. U.S. Dep’t of Justice, 494 F.3d 255,
259-60 (2d Cir. 2007); Zhong Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105,
111 (2d Cir. 2005); Oh, 406 F.3d at 613. Those cases are inapposite because,
here, the BIA clearly understood the scope of its discretion and exercised it. The
BIA “acknowledge[d] the availability of relief in appropriate circumstances,”
Khan, 494 F.3d at 260, and further provided a rational explanation, supported by
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established policies, for denying the motion for reconsideration, see Mahamat,
430 F.3d at 1283. 3
The petition for review is DENIED.
Entered for the Court
Michael W. McConnell
Circuit Judge
3
To the extent petitioner is challenging the BIA’s refusal to deal with his
untimely appeal by accepting the case on certification under 8 C.R.F. § 1003.1(c),
we lack jurisdiction over that issue because there are no standards in 8 C.F.R.
§ 1003.1(c) by which we could judge the exercise, or non-exercise, of the
agency’s discretion. Mahamat, 430 F.3d at 1284.
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