[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 16, 2008
No. 07-14997 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-663-669
CAI GUI CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 16, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Cai Gui Chen, a native and citizen of China, petitions this court for review
of the Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen and
its affirmance of the Immigration Judge’s (“IJ”) order of removal. For the reasons
that follow, we dismiss the petition in part and deny in part.
Chen arrived in the United States in December 2004 without valid entry
documents. The Department of Homeland Security (“DHS”), issued a notice to
appear, charging him with removability under INA § 212(a)(7)(A)(i)(I); 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Chen applied for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (“CAT”), alleging that he
had been persecuted based on his political opinion after he opposed the
government’s seizure of his family’s land without just compensation.
After a hearing, the IJ concluded that Chen’s testimony lacked credibility
and denied relief from removal.1 Chen appealed to the BIA, which dismissed the
appeal on August 24, 2006. Chen did not petition this court for review of the
BIA’s decision.
On June 13, 2007, Chen filed a motion to reopen based on changed
circumstances. According to Chen, his parents had informed him that the Chinese
government was targeting citizens who left China illegally and sought asylum in
another country.
1
Because the underlying removal order is not properly before this court, the facts of the
asylum claim are not relevant.
2
The BIA denied the motion to reopen on September 26, 2007, stating that
Chen had not shown the new evidence was unavailable earlier or that it would
result in a different outcome. On October 24, 2007, Chen filed his petition for
review before this court, seeking review of the denial of his motion to reopen and
the affirmance of the IJ’s denial of relief from removal.
Chen now argues that the IJ erred by finding Chen’s testimony lacked
credibility. He does not address the BIA’s denial of the motion to reopen.
We are “obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir.
2004) (quotation omitted).
An order of removal becomes final upon dismissal of an appeal by the BIA.
8 C.F.R. § 1241.1(a). A petition for review must be filed within thirty days of the
final order of removal. See 8 U.S.C. § 1252(b)(1); see also Dakane v. U.S. Att’y
Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). Importantly, the statutory time
limit for filing a petition for review in an immigration proceeding is “mandatory
and jurisdictional.” Dakane, 371 F.3d at 773 n.3. And, the filing deadline is not
suspended or tolled by a motion to reopen. Stone v. INS, 514 U.S. 386, 405, 115
S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995); Jaggernauth v. U.S. Att’y Gen., 432
F.3d 1346, 1350-1351 (11th Cir. 2005) (observing that the filing of a motion to
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reconsider does not affect the finality of the underlying order or toll the 30-day
period for petitioning for review of such order).
Here, the BIA dismissed Chen’s appeal from the IJ’s order of removal on
August 24, 2006. Chen did not petition this court for review of the BIA’s decision,
but instead filed a motion to reopen on June 13, 2007. Because Chen’s petition for
review was not filed within thirty days after the BIA dismissed the appeal of the
underlying removal order, we lack jurisdiction to consider the removal order.
Thus, we do not consider Chen’s argument that the IJ improperly found the
testimony lacked credibility, and we dismiss the petition in part on this ground.
Chen’s petition for review was timely as to the denial of the motion to
reopen. We review the BIA’s denial of a motion to reopen removal proceedings
for abuse of discretion. Scheerer v. U.S. Att’y. Gen., 513 F.3d 1244, 1254 (11th
Cir. 2008); Dakane, 399 F.3d at 1272 n.2. Here, however, Chen offers no
argument in his brief that the BIA abused its discretion by denying the motion to
reopen. Thus, the issue has been abandoned. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005). Accordingly, we deny the petition in part on
this ground.
DISMISSED IN PART; DENIED IN PART.
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