[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 3, 2008
No. 08-10375
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
Agency No. A94-867-288
DIEGO ARMANDO MUNOZ GUTIERREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 3, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
The issue presented in this appeal is whether the BIA abused its discretion
in denying Diego Armando Munoz Gutierrez’s motion for reconsideration of the
BIA’s dismissal of his appeal from a removal order.
Background
Gutierrez, a native and citizen of Colombia, entered the United States on a
non-immigrant visa and remained beyond the expiration period. He was charged
with removability under 8 U.S.C. § 1227(a)(1)(B). He conceded the allegations
and was permitted to voluntarily depart.
Thereafter, Gutierrez moved to reopen removal proceedings and requested a
stay of removal. The IJ denied both motions in orders dated June 12, 2007. The IJ
was based in Virginia and faxed the orders to the immigration court in Florida on
that date. The following day, the decisions were mailed to Gutierrez and the
certificate of service was dated June 13, 2007. A notation on the order denying
the motion for a stay indicated that any appeal was due by July 16, 2007. There
was no similar notation on the order denying the motion to reopen.
Gutierrez appealed to the BIA, which received the appeal on July 16, 2007.
The regulations provide that the notice of appeal to the BIA “shall be filed directly
with the Board of Immigration Appeals within 30 calendar days after . . . the
mailing of an Immigration Judge’s written decision. If the final date for filing
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falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to
the next business day.” 8 C.F.R. § 1003.38(b) (emphasis added); see also BIA
Practice Manual, §§ 3.1(b)(ii), 4.5(a). The BIA then dismissed the appeal as
untimely, concluding that because the certificate of service was dated on June 13,
the IJ’s decision was “mailed” on June 13; thus, the appeal was due by July 13.
Gutierrez filed a motion for reconsideration, asserting that the IJ’s decision
was postmarked on June 14, and that, therefore, June 14 was the date of mailing
for purposes of triggering the 30-day clock. According to Gutierrez, 30 days from
that day was July 14, but because July 14 was a Saturday, the appeal was due the
next business day, July 16.
The BIA denied the motion for reconsideration, concluding that there was
no basis for reconsidering the previous decision and noting that Gutierrez offered
no BIA or circuit precedent to support his argument.
Discussion
Gutierrez acknowledges that he only had 30 days from the mailing of the
IJ’s orders to appeal. He contends, however, that the clock began the day the
orders were postmarked, not the day on the certificate of service.1
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Gutierrez also argues, alternatively, that the IJ mislead him as to the due date because the
IJ noted on the order denying the stay that the appeal was due by July 16. Gutierrez failed to raise
this argument to the BIA; it is, therefore, improper before this court. See Lonyem v. U.S. Att’y Gen.,
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This court reviews the BIA’s denial of a motion to reconsider for abuse of
discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007).
Review of the BIA’s decision is “limited to determining whether there has been an
exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005). A reviewing court must defer to an agency’s decision if the agency has
made a reasonable interpretation of its own regulations. McHenry v. Bond, 668
F.2d 1185, 1195 (11th Cir. 1982).
Additionally, “[a] motion to reconsider shall state the reasons for the motion
by specifying the errors of fact or law in the prior [BIA] decision and shall be
supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).
Here, the BIA did not abuse its discretion. In his motion, Gutierrez did not
have any binding legal authority to support his argument that the date of the
postmark was the triggering date for computing his 30-day window to file the
appeal. Nor does he cite any such law on appeal. The regulations provide that the
notice of appeal to the BIA “shall be filed directly with the Board of Immigration
Appeals within 30 calendar days after . . . the mailing of an Immigration Judge’s
352 F.3d 1338, 1341 n.5 (11th Cir. 2003).
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written decision.” 8 C.F.R. § 1003.38(b). The BIA considered its own rule and
determined that the date of mailing was determined by the certificate of service,
not the post-mark date. The BIA’s determination was reasonable. Gutierrez fails
to show an abuse of discretion.
Accordingly, we DENY the petition.
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