Desoguste v. United States Attorney General , 135 F. App'x 247 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15973
JUNE 10, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
Agency No. A76-541-302
DUCEPPE DESOGUSTE,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 10, 2005)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Petitioner Duceppe Desoguste, proceeding pro se, petitions this Court for
review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen
his completed removal proceedings. After review, we dismiss his petition in part,
and deny it in part.
I. BACKGROUND
Desoguste is a citizen and national of Haiti. At an unknown place and time
prior to January 11, 2001, he entered the United States illegally, without being
admitted or paroled. On January 11, 2001, the Immigration and Nationalization
Service (INS) 1 issued Desoguste a notice to appear, charging that he was
removable as a alien who was present in the United States without being admitted
or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i).
On January 23, 2003, Desoguste appeared before an Immigration Judge (IJ),
who ordered Desoguste removed to Haiti. The IJ’s order indicated that Desoguste
expressly waived his right to appeal this decision to the BIA, and Desoguste did
not appeal.
On April 21, 2003, Desoguste filed a motion with the IJ seeking to reopen
his removal proceedings (the “April 21, 2003 motion to reopen”). In that motion,
Desoguste claimed that he had married a United States citizen on December 20,
1
The Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, was signed
into law on November 25, 2002. The Act created a new Department of Homeland Security,
abolished the INS, and transferred its functions to the new department.
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2002, and had a pending visa petition based upon this marriage, which was filed on
April 16, 2003. The IJ denied the April 21, 2003 motion to reopen, reasoning that
the pending visa petition was insufficient to warrant reopening Desoguste’s
removal proceeding because the decision to grant the visa was within the sole
discretion of the Department of Homeland Security (DHS).
Desoguste did not appeal this ruling to the BIA, but instead filed a motion
for reconsideration with the IJ on May 21, 2003 (the “May 21, 2003 motion for
reconsideration”). In this motion, Desoguste argued that the BIA’s decision in In
re Velarde-Pacheco, 23 I & N Dec. 253, 256 (BIA 2002), indicated that a pending
family-based visa petition justified reopening a removal proceeding. On May 28,
2003, the IJ denied the May 21, 2003 motion for reconsideration, concluding that
Desoguste’s case did not meet all of the Velarde-Pacheco criteria for reopening a
case. Specifically, the IJ’s decision is based solely on the ground that Velarde-
Pacheco required that the government not oppose any motion to reopen, and that
Desoguste’s case did not meet this requirement. Desoguste appealed the IJ’s ruling
to the BIA.
On April 28, 2004, the BIA adopted and affirmed the IJ’s May 28, 2003
ruling. In addition to adopting the IJ’s decision, the BIA opinion noted that
Desoguste was not entitled to relief under Velarde-Pacheco because he failed to
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submit clear and convincing evidence that his marriage was bona fide.2 Desoguste
did not petition this Court for a review of the BIA’s April 28, 2004 ruling.
On July 23, 2004, Desoguste filed a separate motion to reopen with the BIA
(the “July 23, 2004 motion to reopen”). Desoguste attached to his July 23, 2004
motion to reopen twenty-three exhibits evidencing that his marriage was bona fide.
The exhibits included several affidavits, utility and phone bills, a copy of the
marriage certificate, a 2003 tax return and other documents intended to show that
the marriage is bona fide.
On October 18, 2004, the BIA denied the July 23, 2004 motion to reopen. In
its opinion, the BIA found that Desoguste could have presented this evidence
before the IJ when he filed his April 21, 2003 motion to reopen. In addition, the
BIA stated that the July 23, 2004 motion to reopen was “dilatory in nature.”
On November 15, 2004, Desoguste timely filed a petition in this Court for
review of the BIA’s October 18, 2004 decision.
II. DISCUSSION
A. Jurisdiction
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Specifically, in its April 28, 2004 opinion, the BIA stated that “[i]f, as [Desoguste]
claims, he entered into a bonafide marriage in December 2002, it would seem that more evidence
to substantiate that marriage would have been presented. However, only a few pieces of
documentary evidence were presented and no affidavits from anyone knowing the couple, or
indeed, from the couple themselves . . . .”
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In his brief on appeal, Desoguste argues at length about the various decisions
made by the IJ and the BIA in this case. However, because of the strict filing
deadline that governs our review of immigration cases, we conclude that our
jurisdiction in this case is limited to reviewing the BIA’s October 18, 2004
decision denying Desoguste’s July 23, 2004 motion to reopen.
While this Court generally has jurisdiction to review final orders of removal,
the petition for review must be filed in this Court within 30 days of the order. See
8 U.S.C. § 1252(b)(1). This statutory time limit for filing a petition for review in
an immigration proceeding is “‘mandatory and jurisdictional,’ [and] is not subject
to equitable tolling.” Dakane v. United States Att’y Gen., 399 F.3d 1269, 1272 n.3
(11th Cir. 2004) (quoting Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549
(1995)). Additionally, motions to reconsider or motions to reopen filed with the
BIA do not toll or extend the filing deadline. Id.Desoguste’s November 15, 2004 petition for review in this Court was
therefore timely filed only with respect to the BIA’s October 18, 2004 decision.3
Accordingly, to the extent that Desoguste argues on appeal that the IJ erred in
denying his April 21, 2003 motion to reopen, or that the BIA’s April 28, 2004
3
To be timely filed as to the IJ’s April 22, 2003 order denying Desoguste’s April 21,
2003 motion to reopen, Desoguste’s petition for review should have been filed by May 22, 2003.
To be timely field with respect to the BIA’s April 28, 2004 order affirming the IJ’s denial of
reconsideration, the petition for review should have been filed by May 28, 2004.
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decision erred in affirming the IJ’s denial of Desoguste’s May 21, 2003 motion for
reconsideration, this Court lacks jurisdiction to consider Desoguste’s arguments.
Thus, that portion of Desoguste’s petition for review is dismissed. See id.We now turn to our review of the BIA's October 18, 2004 decision denying
Desoguste's July 23, 2004 motion to reopen filed with the BIA.
B. BIA’s October 18, 2004 Decision
We review the BIA’s denial of Desoguste’s July 23, 2004 motion to reopen
for an abuse of discretion. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th
Cir. 1999).
The regulation that governs motions to reopen before the BIA states that a
motion to reopen may not be granted “unless it appears to the Board that evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1).
In its October 18, 2004 decision, the BIA determined that the evidence
presented by Desoguste’s July 23, 2004 motion to reopen, namely the twenty-three
exhibits purporting to show that his marriage was bona fide, could have been
presented to the IJ when Desoguste originally moved to reopen his removal
proceeding on April 21, 2003. We cannot say that this is an abuse of discretion.
The documents submitted by Desoguste in his July 24, 2004 motion to
reopen consisted of items such as his marriage certificate, affidavits of his wife and
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friends, pictures of Desoguste and his family, a letter from his pastor, his and his
wife’s 2003 tax return, and various utility bills. Because Desoguste claims that he
was married on December 20, 2002, there is no reason to believe that these items
were “not available and could not have been discovered or presented” at the time
of his April 21, 2003 motion to reopen. Indeed, Desoguste does not argue on
appeal that any of the new evidence submitted with his July 23, 2004 motion to
reopen before the BIA was unavailable at the time of his April 21, 2003 motion to
reopen before the IJ.
Under these circumstances, we can not say that the BIA abused its discretion
in denying Desoguste’s July 23, 2004 motion to reopen. See 8 C.F.R. §
1003.2(c)(1); see also INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724-25
(1992) (noting that motions to reopen are disfavored in removal proceedings
because “as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.”)
III. CONCLUSION
For the above reasons, we DISMISS Desoguste’s petition for review insofar
as it challenges any ruling other than the BIA’s October 18, 2004 denial of his
motion to reopen. In addition, we DENY Desoguste’s petition to the extent that it
challenges the BIA’s October 18, 2004 decision.
DISMISSED in part, DENIED in part.
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