Herna Charles v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15342 JUNE 5, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA No. A97-930-496
HERNA CHARLES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 5, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Herna Charles, a native and citizen of Haiti, petitions this Court for review
of the decision of the Board of Immigration Appeals (“BIA”) denying her motion
to reconsider its affirmance of her removal order, which was based on a denial of
cancellation of her removal. On March 24, 2006, the BIA upheld the Immigration
Judge’s (“IJ”) discretionary denial of cancellation of removal, pursuant to 8 U.S.C.
§ 1229b(b)(1)(D), and dismissed her appeal. Charles filed no petition for review of
the BIA’s dismissal order in this Court. On April 21, 2006, Charles filed a motion
to reconsider the removal order, arguing that the IJ had failed to consider the
excessive hardship on her children that her removal would cause. On September 6,
2006, the BIA denied the motion to reconsider. Charles then filed this petition for
review from the denial of her motion to reconsider. We deny the petition in part
and dismiss the petition, for lack of jurisdiction, in part.
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) (internal quotation omitted). We have jurisdiction over a “final order of
removal,” so long as the petition for review is filed within 30 days. INA §
242(a)(1), (b)(1), 8 U.S.C. § 1252(a)(1), (b)(1); Stone v. INS, 514 U.S. 386,
394-95 (1995) (providing that “deportation orders are to be reviewed in a timely
fashion after issuance, irrespective of the later filing of a motion to reopen or
reconsider”). An order of removal becomes final upon, inter alia, the dismissal of
an appeal by the BIA. See 8 C.F.R. § 1241.1(a). A petitioner’s filing of a motion
to reconsider does not toll the statutory time to petition for review.” Stone, 514
U.S. at 394. “[T]he statutory limit for filing a petition for review in an
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immigration proceeding is ‘mandatory and jurisdictional,’ [and, therefore,] it is not
subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3
(11th Cir. 2005) (quoting Stone, 514 U.S. at 405).
Because Charles did not file her petition for review within 30 days of the
BIA’s March 24, 2006 decision, and because the filing of a motion to reconsider
does not toll this statutory time-period, we lack jurisdiction to review the March
24, 2006 decision and therefore dismiss the petition as it relates to that decision.1
Although we have jurisdiction to review the BIA’s September 6, 2006 order
denying reconsideration, Charles has abandoned any claim of error as to that order
by failing to raise any argument about it in her brief. Therefore, as to that order,
the petition is denied.
PETITION DISMISSED IN PART AND DENIED IN PART.
1
As for Charles’s argument concerning the discretionary denial of cancellation of
removal, we likewise lack jurisdiction to review the BIA’s purely discretionary decisions, both
that a petitioner did not meet § 1229b(b)(1)(D)’s hardship standard, , and that a petition was not
entitled to cancellation of removal under § 1229b. See 8 U.S.C. § 1252(a)(2)(D); Martinez v.
U.S. Att’y Gen., 446 F.3d 1219, 1222-23 (11th Cir. 2006).
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