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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11011
Non-Argument Calendar
____________________
YANG ZHANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A213-016-404
____________________
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2 Opinion of the Court 22-11011
Before LUCK, LAGOA, and BLACK, Circuit Judges.
PER CURIAM:
Yang Zhang, a native and citizen of China proceeding pro
se, seeks review of: (1) the immigration judge’s (IJ) 2020 denial of
his applications for asylum pursuant to 8 U.S.C. § 1158(a), with-
holding of removal under 8 U.S.C. § 1231(b)(3), and relief under the
United Nations Convention Against Torture and Other Cruel, In-
human or Degrading Treatment or Punishment (CAT), 8 C.F.R.
§ 208.16(c); (2) the Board of Immigration Appeals’ (BIA) 2021 sum-
mary dismissal of his administrative appeal from the IJ’s order; and
(3) the BIA’s 2022 denial of his motion to reopen and reconsider
that dismissal. The Government moves for summary disposition,
arguing because this Court lacks jurisdiction in certain respects,
and the BIA’s denial of Zhang’s motion to reopen and reconsider
was not otherwise an abuse of discretion, denial of Zhang’s petition
for review is warranted.
I. PROCEDURAL HISTORY
Following a hearing, the IJ denied Zhang’s applications for
asylum, withholding of removal, and CAT relief. The IJ issued a
removal order to this effect on November 16, 2020. Zhang,
through counsel, administratively appealed the IJ’s decision, but
the BIA did not receive his appeal until December 21, 2020. In No-
vember 2021, the BIA summarily dismissed Zhang’s appeal be-
cause he did not file it within 30 days, as required.
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22-11011 Opinion of the Court 3
Zhang did not immediately file a petition for review with
this Court. Instead, he moved the BIA to reopen his removal pro-
ceedings and reconsider his appeal. He admitted he untimely filed
the administrative appeal on December 21, 2020, but asserted he
mailed the appeal, via United States Postal Service Priority Mail on
December 10, 2020, with an expected delivery date of December
14, 2020. Zhang acknowledged the Postal Service delays did not
affect existing deadlines, but asked the BIA to consider the delay
and excuse the missed deadline. In support, he attached documen-
tation showing he sent the notice of administrative appeal on De-
cember 10, 2020, via two-day Priority Mail.
The BIA denied Zhang’s motion to reopen and reconsider in
March 2022. It determined reconsideration was unwarranted be-
cause there was no factual or legal error in its 2021 decision. Next,
it noted the post-deadline delivery of Priority Mail, which was nei-
ther an overnight nor guaranteed service, was not an exceptional
circumstance. Finally, it noted Zhang had presented no appropri-
ate bases for sua sponte reconsideration. Shortly thereafter, Zhang
filed a pro se petition for review with this Court, asking that we
“overturn” the BIA’s decisions regarding asylum, withholding of
removal, and CAT relief or, in the alternative, remand the case to
the agency for reopening and consideration.
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4 Opinion of the Court 22-11011
II. DISCUSSION
A. IJ’s 2020 Decision and BIA’s 2021 Decision
A petition for review of an order of removal must be filed
no later than “30 days after the date of the final order of removal.”
8 U.S.C. 1252(b)(1). An order of removal is final when the BIA af-
firms the order or when the time to appeal the order to the BIA
expires, whichever is earlier. 8 U.S.C. § 1101(a)(47)(B). A statutory
provision that specifies the timing of judicial review for immigra-
tion proceedings is jurisdictional, and not subject to equitable toll-
ing. Stone v. I.N.S., 514 U.S. 386, 405 (1995). “[T]he filing of a
motion to reopen or a motion to reconsider shall not stay the exe-
cution of any decision made in the case.” 8 C.F.R. § 1003.2(f).
Zhang filed his petition for review more than 30 days after
the BIA’s 2021 dismissal of his appeal from the IJ’s 2020 denial of
asylum and related relief. 8 U.S.C. 1252(b)(1). His motion to reo-
pen and reconsider did not toll the time for him to file a petition
for review from the BIA’s 2021 decision. Stone, 514 U.S. at 395
(explaining the filing of a motion to reopen “does not toll the time
to petition for review”). Thus, we lack jurisdiction to consider
Zhang’s challenge to the IJ’s underlying denial of asylum, with-
holding of removal, and CAT relief, and the BIA’s dismissal of his
related appeal, because he filed his present petition for review more
than 30 days after the BIA’s dismissal.
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22-11011 Opinion of the Court 5
B. BIA’s 2022 Decision
A motion to reopen “shall state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8 U.S.C.
§ 1229a(c)(7)(B). Motions to reconsider “shall specify the errors of
law or fact in the previous order and shall be supported by perti-
nent authority.” 8 U.S.C. § 1229a(c)(6)(C).
A notice of administrative appeal must be filed with the BIA
within 30 calendar days of the mailing of the IJ’s decision. 8 C.F.R.
§ 1003.38(b). The notice of appeal is deemed filed on the date that
it is received by the BIA. Id. § 1003.38(c). An appeal is not consid-
ered properly filed unless it is received by the BIA, along with all
required documents, within the 30-day window. Id. § 1003.3(a)(2).
The BIA has the discretion to summarily dismiss an appeal where
the appeal is untimely. Id. § 1003.1(d)(2)(i)(G).
We have jurisdiction to review the BIA’s 2022 denial of
Zhang’s motion to reopen and reconsider, but the record shows
the BIA did not abuse its discretion in that respect. 8 U.S.C.
§ 1229a(c)(6)(C); 8 U.S.C. § 1229a(c)(7)(B); Ferreira v. U.S. Att’y
Gen., 714 F.3d 1240, 1242-43 (11th Cir. 2013) (reviewing the BIA’s
denial of a motion to reconsider for abuse of discretion); Li v. U.S.
Atty. Gen., 488 F.3d 1371, 1374 (11th Cir. 2007) (reviewing the de-
nial of a motion to reopen for abuse of discretion). There is no
abuse of discretion because: (1) Zhang’s counsel conceded the no-
tice of appeal to the BIA was untimely; (2) counsel cited no legal
errors, factual errors, or new facts in his administrative appeal; and
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6 Opinion of the Court 22-11011
(3) Zhang does not dispute the BIA appeal was untimely in his pe-
tition for review. 8 C.F.R. § 1003.38(b), (c). Moreover, Zhang has
abandoned any challenge to the BIA’s holding that a delay in mail
service was not an exceptional circumstance but, even if he had
preserved the argument, a delivery service delay is not an excep-
tional circumstance. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (stating issues not briefed on appeal are deemed
abandoned); see Matter of Liadov, 23 I. & N. Dec. 990, 993 (BIA
2006) (providing short delays by delivery services are not “rare” or
“extraordinary”).
Zhang did not exhaust, before the BIA, his arguments that:
(1) his counsel was ineffective for using Priority Mail; or (2) the IJ
and BIA deprived him of due process. Thus, we lack jurisdiction to
consider those points. See Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250-51 (11th Cir. 2006) (stating we lack jurisdiction
to consider claims, including procedural due process claims, raised
in a petition for review unless the petitioner has exhausted all ad-
ministrative remedies related to that claim).
Thus, the Government’s position is clearly correct as a mat-
ter of law, no substantial question remains as to the outcome of the
case, and summary disposition is appropriate. See Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) 1 (stating
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1989) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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22-11011 Opinion of the Court 7
summary disposition is appropriate where “the position of one of
the parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case”). Accordingly,
we GRANT the Government’s motion for summary disposition,
DENY as moot its request to stay the briefing schedule, and
DISMISS Zhang’s petition in part and DENY it in part.