[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 14, 2005
No. 05-10587
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A77-318-249
EJAZ AHMED SHAH,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 14, 2005)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ejaz Ahmed Shah petitions for review of the Board of Immigration
Appeals’s (“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his
motion for a continuance and the BIA’s denial of his motion for reconsideration.
We affirm the BIA’s decisions for the reasons set forth below.
I.
Shah, a native and citizen of Pakistan, arrived at Los Angeles International
Airport on July 4, 2000, without valid entry documents. He applied for admission
to the United States and was paroled into the country based on a credible threat of
persecution. The Immigration and Naturalization Service (“INS”)1 filed a Notice
to Appear on July 19, 2000, charging Shah as an arriving alien removable for
failure to possess valid entry documents. INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). At a hearing before an IJ on March 29, 2001, Shah admitted
the allegations of fact contained in the Notice to Appear and conceded
removability. Initially, Shah requested relief from removal by filing an
Application for Asylum and Withholding of Removal and an application for
withholding of removal under the Convention Against Torture.
During the course of his removal proceedings, Shah married a United States
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department of
Homeland Security, abolished the INS, and transferred its functions to the new department.
Because this case commenced while the INS was still in existence, we refer to the INS rather
than the DHS.
2
citizen on February 20, 2002, and subsequently filed an I-130 Petition for Alien
Relative. At a hearing before an IJ on January 9, 2003, Shah withdrew with
prejudice his request for asylum, withholding of removal, and protection under the
Convention Against Torture, and instead, he moved for a continuance based on the
pending I-130 petition. The IJ denied the motion for continuance, noting that he
did not have the authority to adjudicate either the I-130 petition or the application
for adjustment of status, and ordered Shah’s removal.
Shah appealed the decision to the BIA. Although he conceded that the IJ
lacked the authority to adjust his status, Shah maintained that the IJ abused its
discretion by denying the motion without considering his evidence that the
marriage was bona fide, arguing that he satisfied the criteria outlined in Matter of
Velarde, 23 I. & N. Dec. 253 (BIA 2002). The BIA remanded the case to the IJ to
prepare a separate oral or written order. After the IJ issued a written opinion, the
BIA affirmed without opinion on August 12, 2004, making the IJ’s decision the
final agency determination.
On September 13, 2004, Shah moved the BIA for reconsideration. In his
motion, Shah asserted that the BIA’s decision in Matter of Velarde should control,
that the BIA erred by summarily affirming the IJ’s decision, and that the BIA erred
by affirming the decision by a single panel member. The BIA denied the motion
3
on January 6, 2005. On February 3, 2005, Shah filed the instant petition for
review.
II.
As an initial matter, we must determine which issues are properly before us
for review. For the following reasons, we conclude that the only issue before us is
the BIA’s denial of the motion for reconsideration.
Under section 242(a)(1) and (b)(1) of the Immigration and Nationality Act, a
petitioner has thirty days from the date of the final order of removal to file a
petition for review with this court. 8 U.S.C. § 1252(a)(1), (b)(1). “Since the
statutory limit for filing a petition for review in an immigration proceeding is
‘mandatory and jurisdictional,’ it is not subject to equitable tolling.” Dakane v.
U.S. Attorney Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2004) (citing Stone v. INS,
514 U.S. 386, 405 (1995)). Here, the BIA affirmed the IJ’s order of removal on
August 12, 2004, making it a final order. See 8 C.F.R. § 1003.1(e)(4). Shah did
not petition for review of that order, but instead filed a motion for reconsideration
on September 13, 2004. It was not until the BIA denied the motion on January 6,
2005, that Shah filed his petition for review by this court on February 3, 2005.
Shah, therefore, failed to meet the deadline specified by statute, having filed his
petition for review approximately six months after the final order of removal was
4
entered.
Moreover, the filing deadline is not suspended or tolled by Shah’s timely
motion for reconsideration. Stone, 514 U.S. at 395; Dakane, 399 F.3d at 1272.
Thus, this court lacks jurisdiction to review the underlying order of removal and
the denial of Shah’s motion for a continuance. The only issue before this panel is
the denial of the motion for reconsideration.
III.
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Assa’ad v. U.S. Attorney Gen., 332 F.3d 1321, 1341 (11th Cir. 2003),
cert. denied, 125 S. Ct. 138 (2004). Motions for reconsideration are disfavored in
removal proceedings. INS v. Doherty, 502 U.S. 314, 323 (1992) (discussing
motions to reopen and explaining that such motions are disfavored because “as a
general matter, every delay works to the advantage of the deportable alien who
wishes merely to remain in the United States”). Further, it is clear that the decision
to grant a motion for reconsideration lies firmly within the discretion of the BIA. 8
C.F.R. § 1003.2(a).
Here, the BIA did not abuse its discretion by denying the motion for
reconsideration. First, petitioner’s claim that the case should not have been
summarily affirmed by a single board member is barred by 8 C.F.R.
5
§ 1003.2(b)(3). Second, Shah’s argument that Matter of Velarde was improperly
distinguished by the IJ does not justify reconsideration. Petitioner failed to show
how the BIA misapplied the law on this ground.
Finally, we lack jurisdiction to consider petitioner’s argument that 8 C.F.R.
§ 245.1(c)(8) is invalid as inconsistent with 8 U.S.C. § 1255(a). Although Shah
repeatedly conceded that the IJ lacked authority to adjust his status, he challenges
for the first time in this appeal whether the Attorney General exceeded his statutory
authority in promulgating 8 C.F.R. § 245.1(c)(8), which exempts arriving aliens in
removal proceedings from eligibility for status adjustment. In fact, the first time
that this regulation was mentioned during the course of these proceedings was in
petitioner’s brief to this court. Because petitioner failed to preserve this argument,
we lack jurisdiction to entertain it. See 8 U.S.C. § 1252(d)(1); Adefemi v. Ashcroft,
386 F.3d 1022, 1031 n.13 (11th Cir. 2004) (en banc) (finding no jurisdiction to
review claim arguing a right to discretionary relief under INA § 245(a) because
petitioner failed to make the argument in the administrative forum); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1285 n.14 (11th Cir. 2001) (refusing to consider
argument that petitioners were entitled to asylum as “refugees sur place” because
they failed to satisfy the exhaustion requirement).
Accordingly, we DENY the petition.
6