Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-31-2006
Ygana v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2757
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2757
EFREN YGANA,
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General Of the United States
Respondent
*Submitted pursuant to Rule 43c, F.R.A.P.
On Petition for Review of an Order of
The Board of Immigration Appeals
(No. A29-053-224)
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2006
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed: January 31, 2006)
OPINION
AMBRO, Circuit Judge
Efren Ygana petitions us to review the decision of the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying Ygana’s
motion for reconsideration of the IJ’s order of removal. For the reasons below, we deny
Ygana’s petition for review.
I.
As we write solely for the parties, only a brief summary of the pertinent facts is
necessary. Ygana is a native and citizen of the Philippines who entered the United States
as a non-immigrant visitor for business in April 1988, and was authorized to stay only
until May 18, 1988. Ygana stayed beyond this date without permission to do so, without
filing any asylum, or other preclusion of removal, petition.1 As a result, on March 7,
2002, Ygana was served with a notice to appear, alleging he was subject to removal,
pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States for longer than
his visa permitted. Ygana conceded removability, and reapplied for an adjustment of
status to that of a lawful permanent resident on the basis of an approved labor
certification. Ygana also sought voluntary departure as an alternative to removal.
At the removal hearing, the IJ denied Ygana’s reapplication for adjustment of
status and declined to grant voluntary departure. Ygana did not appeal the IJ’s decision to
the BIA. Instead, he filed a motion for reconsideration before the IJ. When the IJ
rejected Ygana’s motion, he appealed to the BIA, and it affirmed the denial of the motion
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In 1999, Ygana applied for an adjustment of status to that of a lawful permanent
resident, but he withdrew his application in January 2002.
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for reconsideration without a separate opinion. Ygana filed a timely petition for review
from this affirmance.
II.
The Government asserts we do not have jurisdiction to review the order of removal
by the IJ. This assertion we review de novo. Nugent v. Ashcroft, 367 F.3d 162, 165 (3d
Cir. 2004). The context is that the Government claims that Ygana waived his appeal of
the order of removal, as he failed to appeal that decision to the BIA within 30 days as
required by 8 C.F.R. § 1003.38(b). It also contends that he failed to comply with the
administrative exhaustion requirements of 8 U.S.C. § 1252(d)(1), which provides that “[a]
court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.”
We agree. It is uncontested that Ygana did not appeal the IJ’s order of removal to
the BIA and appealed only the denial of the motion to reconsider. The Supreme Court
has held that the filing of a motion to reconsider a final order does not toll the period for
seeking judicial review of the underlying order. Stone v. INS, 514 U.S. 386, 395 (1995);
see also Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). Accordingly, in the absence
of a timely petition for review of the IJ’s order, we lack jurisdiction to consider the merits
of Ygana’s application for adjustment of status and request for voluntary departure.
III.
As to what is before us (the denial of the motion to reconsider), the Government
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contends that Ygana waived any claim regarding that motion by failing to argue it in his
brief to our Court, instead limiting his argument to a challenge to the IJ’s order of
removal.2
We agree here as well. “It is well settled that an appellant’s failure to identify or
argue an issue in his opening brief constitutes waiver of that issue on appeal.” United
States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005); see also Lie v. Ashcroft, 396 F.3d 530,
532 n.1 (3d Cir. 2005) (holding alien’s claim waived when she did not raise any
argument, except by mentioning the applicable statute in her concluding paragraph, or
rebut in her reply brief the Government’s argument that she had waived the issue). Ygana
does not mention the motion to reconsider in his opening brief. Likewise, in his reply
brief Ygana does not argue that the BIA (or the IJ) abused its discretion in denying
reconsideration; he claims only that petitioning from the removal order and petitioning
from the denial of the motion to reconsider are “substantively the same,” and the
“procedural difference between the two . . . does not impact the valid substantive
argument brought before this Court.”
This is incorrect. A petition for review from a decision on the merits is not
interchangeable with petitioning from the BIA’s denial of a subsequent motion to
2
The Government additionally asserts that, under I.C.C. v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 279 (1987), when an administrative agency denies a motion urging
reconsideration based on a claim of error in its prior decision, and the agency did nothing
more than summarily deny reconsideration, the decision is not subject to review. Because
Ygana waived his challenge to the denial of reconsideration, we do not reach this issue.
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reconsider. Rather, they are distinct petitions that must be reviewed separately. See
Stone, 514 U.S. at 405-06; Nocon, 789 F.2d at 1033. By not addressing the denial of his
motion to reconsider, and instead challenging the merits of the IJ’s removal order, Ygana
has waived his opportunity to have us consider his challenge to the denial of
reconsideration. Our Court observed in Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993), that the federal appellate rules and our local rules require petitioners to set out the
issues raised on appeal and to present arguments in support of them in their brief. We
stated that “[i]t is well settled that if an appellant fails to comply with those requirements
on a particular issue, the appellant normally has abandoned and waived that issue on
appeal and it need not be addressed by the court of appeals.” Id. Here, Ygana has not
complied with these requirements. For that reason, we will deny the petition for review.
IV.
Ygana waived his claims regarding the IJ’s order of removal by failing to appeal it
to the BIA and we therefore have no jurisdiction to review the IJ’s order (including the
alternative request for voluntary departure). Put simply, this matter is not before us.
Ygana also waived any challenge to the denial of his motion for reconsideration —
the only matter before us— by failing to raise any such challenge in his petition for
review. We accordingly deny his petition for review.
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