Messaoudi v. INS ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NABIL MESSAOUDI,
Petitioner,
v.
No. 98-2838
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
NABIL MESSAOUDI,
Petitioner,
v.
No. 99-1828
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petitions for Review of Orders
of the Board of Immigration Appeals.
(A75-336-520)
Submitted: February 22, 2000
Decided: March 14, 2000
Before WILKINS, NIEMEYER, and KING, Circuit Judges.
_________________________________________________________________
No. 98-2838 dismissed and No. 99-1828 affirmed by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Michael D. Fraidin, Baltimore, Maryland, for Appellant. David W.
Ogden, Acting Assistant Attorney General, Laura Smith, James
Hunolt, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In No. 98-2838, Nabil Messaoudi petitions for review of a final
order of the Board of Immigration of Appeals ("Board") denying an
application for asylum and withholding of deportation. In No. 99-
1828, Messaoudi petitions for review of a final order of the Board
denying his motion to reopen, reconsider and/or remand ("motion to
reopen") the deportation proceedings. In No. 98-2838, we dismiss the
petition for review for lack of jurisdiction because Messaoudi filed an
untimely petition for review. In No. 99-1828, we affirm the Board's
decision to deny the motion to reopen.
Because Messaoudi was in deportation proceedings prior to April
1, 1997, and the final order of deportation was issued more than thirty
days after September 30, 1996, the transitional rules under the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009-546, apply. See Lewis v. INS, 194
F.3d 539, 542 n.4 (4th Cir. 1999). Under the transitional rules, Mes-
saoudi had thirty days after the date of the final order of exclusion in
which to file a petition for review. See Hadera v. INS, 136 F.3d 1338,
1340 (D.C. Cir. 1998).
On August 12, 1998, the Board mailed its order to Messaoudi at
the address listed on the notice of appeal. See Martinez-Serrano v.
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INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (time for filing a petition for
review begins when the Board mails its order to the petitioner's
address of record). Messaoudi did not file his petition for review until
December 23, 1998. We note that the Board mailed the final order of
exclusion to the address indicated on the notice of appeal. We also
note that Messaoudi did not properly inform the Board of his change
of address. Because Messaoudi did not file a timely petition for
review, we dismiss No. 98-2838 for lack of jurisdiction. See Hadera,
136 F.3d at 1340; Mayard v. INS, 129 F.3d 438, 439 (8th Cir. 1997)
(transitional rule providing for a thirty day appeal period is jurisdic-
tional).
In No. 99-1828, we affirm the Board's decision to deny Mes-
saoudi's motion to reopen. Our review of the Board's decision to
deny a motion to reopen is "extremely deferential," and will be
reviewed only for an abuse of discretion. Stewart v. INS, 181 F.3d
587, 595 (4th Cir. 1999). An abuse of discretion occurs when the
Board's action is "arbitrary and capricious." Casalena v. INS, 984
F.2d 105, 106 (4th Cir. 1993). "Motions to reopen immigration pro-
ceedings are disfavored, particularly in deportation proceedings,
where ``every delay works to the advantage of the deportable alien
who wishes to merely remain in the United States.'" Stewart, 181
F.3d at 595 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
We find that the Board did not abuse its discretion in finding that
Messaoudi: (1) failed to properly support his renewed claim for asy-
lum; (2) failed to properly support his claim of ineffective assistance
of counsel; and (3) provided no meritorious reason to withhold depor-
tation based on family hardship.
Accordingly, we dismiss No. 98-2838 for lack of jurisdiction and
affirm the Board's order in No. 99-1828. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
No. 98-2838 - DISMISSED
No. 99-1828 - AFFIRMED
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