[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 28, 2008
No. 07-15351 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A96-272-606
ROOSEVELT ACHIRI ALOMBA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 28, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Petitioner is a native and citizen of Cameroon. He entered the United States
on a date unknown to the Government, and on December 10, 2002, submitted to
the Immigration and Naturalization Service, not the Department of Homeland
Security, an application for asylum, withholding of removal under the Immigration
and Nationality Act (“INA”), and protection under the U.N. Convention Against
Torture.
A Notice to Appear issued on September 8, 2003, charging Petitioner with
removability as being an alien inadmissible by law on several grounds. On
February 11, 2004, Petitioner, through counsel, admitted that he was removable as
alleged in the Notice to Appear, and eleven days later an Immigration Judge (“IJ”)
heard his application, denied it, and ordered him removed. Petitioner appealed the
IJ’s decision to the Board of Immigration Appeals (“BIA”), and on June 8, 2006, it
adopted and affirmed the IJ’s decision. On April 19, 2007, Petitioner, through
substitute counsel, moved the BIA to reissue its June 8 decision – on the ground
that he had not received the June 8 decision due to the ineffectiveness of his lawyer
who failed to notify him of the decision – and to grant a stay of removal. Although
counsel asked the BIA to reissue the June 8 decision, it effectively asked the BIA
to reopen Petitioner’s appeal.
On October 17, 2007, the BIA granted the motion in an order that
effectively vacated the June 8 decision and reinstated Petitioner’s appeal on its own
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motion pursuant to 8 C.F.R. § 1003.2(a), and then issued a final order of removal
as of October 17, incorporating by reference the text of the vacated June 8 order.
In the same October 17 order, the BIA denied Petitioner’s request for a stay.
On November 16, 2007, Petitioner, through current counsel, filed a petition
with this court, seeking review of the BIA’s October 17 decision. He argues that
the BIA abused its discretion by denying his motion to reopen based on the
ineffectiveness of his counsel in his hearing before the IJ. The Government argues
that Petitioner has abandoned any challenge to the BIA’s order adopting and
affirming the IJ’s removal order.
When an appellant fails to offer argument on an issue, that issue is
abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005). Petitioner has abandoned any challenge he may have to the BIA’s October
17 order because his brief does not address that order. The Government further
argues that we lack jurisdiction to review Petitioner’s challenges to the BIA’s
February 17 order denying his motion to reopen.
We review “questions of subject matter jurisdiction de novo.” Brooks v.
Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). We have jurisdiction to determine
the jurisdictional facts. Id. While we generally have jurisdiction to review final
orders of removal, the petition for review must be filed within 30 days of the date
of the final order of removal. INA § 242(a)(1), (b)(1), 8 U.S.C. § 1252(a)(1) and
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(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. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (citing Stone
v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 1549, 131 L.Ed.2d 465 (1995)). A
motion to reconsider filed with the BIA does not suspend the finality of the
underlying BIA order and does not toll the review period. Stone, 514 U.S. at 405-
06, 115 S.Ct. at 1549 (construing the former 90-day period for filing a petition for
review under INA § 106(a)(1), 8 U.S.C. § 1105(a)).
We lack jurisdiction to review the BIA’s denial of Petitioner’s motion to
reopen because Petitioner did not file a timely petition for review of that order with
this court. To the extent that Petitioner seeks review of the BIA’s order adopting
and affirming the IJ removal order, his petition is denied. To the extent that he
seeks review of the BIA’s denial of his motion to reopen, the petition is dismissed.
DENIED, in part; DISMISSED, in part.
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