Nick Caty v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-10602 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
OCTOBER 4, 2011
________________________
JOHN LEY
CLERK
Agency No. A041-137-610
NICK CATY,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 4, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Nick Caty, through counsel, seeks review of the Board of Immigration
Appeals’ (BIA) order denying his motion to remand so that he could seek a waiver
of deportability. In 1997, an Immigration Judge (IJ) found Caty deportable for
having committed two crimes involving moral turpitude, and concluded he
abandoned all relief because he failed to timely file an application for relief. Caty
did not file a petition for review from the IJ’s decision or the BIA’s dismissal of
his appeal. He also did not seek judicial review of the BIA’s February 1999 or
January 2010 orders denying his two motions to reopen.
Instead, Caty filed the instant motion to remand in October 2010, and the
BIA denied it as untimely, considering it both as a motion to reopen and as a
motion to reconsider. On appeal, Caty argues the IJ violated his due process
rights in 1997 by finding him deportable, imposing an inadequate filing deadline
for applications of relief, and failing to conduct an individual hearing before
ordering him removed. After review, we dismiss Caty’s petition in part and deny
it in part.1
Although we have jurisdiction to review the denial of the motion, see
Kucana v. Holder, 130 S. Ct. 827, 840 (2010), we do not have jurisdiction to
1
We review de novo whether we have jurisdiction to consider a petition for review. Ruiz
v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).
2
review the underlying claim raised therein. The sole issue raised by Caty—that
the IJ violated his due process rights during removal proceedings that occurred
over 10 years ago—is not a claim that can be presently reviewed because he did
not timely petition for review of the IJ’s 1997 orders. See IIRIRA § 309(c)(4)(C)
(reprinted in 8 U.S.C. § 1101 (historical notes)).2 Moreover, Caty has abandoned
any challenge to the BIA’s finding that his motion to remand was untimely, both
as a motion to reopen and as a motion to reconsider, because he has not raised the
issue on appeal. See Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir.
2010). Caty also does not argue that the BIA erred or violated his due process
rights and has abandoned any claims in this respect as well. Accordingly, the
petition is dismissed to the extent we lack jurisdiction over the sole claim raised,
and denied to the extent he failed to preserve any other claim we would have
jurisdiction to consider.
PETITION DISMISSED IN PART, DENIED IN PART.
2
In any event, the IJ’s conclusion that he abandoned all immigration relief by failing to
submit a timely application does not, by itself, amount to a violation of due process rights. See Tang
v. U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir. 2009) (citing 8 C.F.R. § 1003.31(c)) (holding that
an alien “does not have a constitutionally protected liberty interest in the admission of evidence after
the court-ordered deadline” and “cannot establish a due process violation based on the IJ’s adverse
decision” in that respect).
3