Elito Santos Mendes v. Merrick Garland ( 2023 )

USCA4 Appeal: 23-1066 Doc: 24 Filed: 07/25/2023 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1066
ELITO MARIKE SANTOS MENDES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted: June 27, 2023 Decided: July 25, 2023
Before NIEMEYER and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Petition dismissed by unpublished per curiam opinion.
Elito Marike Santos Mendes, Appellant Pro Se. Duncan Thomas Fulton, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 23-1066 Doc: 24 Filed: 07/25/2023 Pg: 2 of 2
PER CURIAM:
Elito Marike Santos Mendes, a native and citizen of Cape Verde, petitions for
review of the order of the Board of Immigration Appeals (“Board”) dismissing his untimely
appeal from the immigration judge’s denial of his application for deferral of removal under
the Convention Against Torture and denying to consider the appeal by certification. This
Court lacks jurisdiction to review the Board’s discretionary decision not to certify an
appeal. See Idrees v. Barr, 923 F.3d 539, 542-43 (9th Cir. 2019) (holding that the decision
of whether to certify a claim is committed to agency’s discretion and not reviewable).
Because Mendes did not timely appeal, his remaining claims are unexhausted and will not
be considered by this court. See Poole v. Mukasey, 522 F.3d 259, 264 (2d Cir. 2008)
(joining other circuits to hold that a late appeal to the Board leaves a petitioner’s claim
unexhausted). Accordingly, we dismiss the petition for review. We deny Mendes’ motions
for appointment of counsel and to submit additional evidence. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
submissions before the court and argument would not aid the decisional process.
PETITION DISMISSED
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