J. Ibarra-Terrazas v. Alberto Gonzales ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3229
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Julio G. Ibarra-Terrazas, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Alberto Gonzales, *
United States Attorney General, *
*
Respondent. *
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Submitted: June 13, 2006
Filed: August 28, 2006
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Before LOKEN, Chief Judge, ARNOLD, Circuit Judge, and DOTY,1 District Judge.
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ARNOLD, Circuit Judge.
Julio Ibarra-Terrazas appeals the decision of the Board of Immigration Appeals,
which dismissed as untimely his appeal from an immigration judge's decision finding
him removable and ineligible for relief from deportation. We affirm.
Mr. Ibarra-Terrazas, a lawful permanent resident of the United States, pleaded
guilty in state court to two counts of indecent liberties with a child under sixteen years
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
of age and served over two years' imprisonment. The Department of Justice then
instituted deportation proceedings against him. An immigration judge in Missouri
ordered Mr. Ibarra-Terrazas to be deported and rejected his request for relief from
deportation. The Board of Immigration Appeals rejected his appeal of the
immigration judge's decision as untimely because it was filed one day later than
allowed by the regulation in effect at the time, 8 C.F.R. § 3.38(b) (1997). Mr. Ibarra-
Terrazas then filed a petition for habeas corpus under 28 U.S.C. § 2241 in a federal
district court in Texas. But new legislation required the district court to transfer
Mr. Ibarra-Terrazas's pending case to this court, the court of appeals for the circuit
where the immigration judge had decided his case. The Real ID Act of 2005, Pub. L.
No. 109-13, Div. B, § 106, 119 Stat. 231, 310-11 (May 11, 2005); 8 U.S.C.
§ 1252(b)(2). We treat a case transferred under § 106(c) of The Real ID Act as if it
was filed as a petition for review under § 1252. See The Real ID Act, Div. B,
§ 106(c), 119 Stat at 311.
The government contends that we do not have jurisdiction over Mr. Ibarra-
Terrazas's petition because it fails to raise a constitutional claim or a question of law.
See 8 U.S.C. § 1252(a)(2)(D); Salkeld v. Gonzales, 420 F.3d 804, 809 (2005). We
disagree. Mr. Ibarra-Terrazas maintains that the Board should have addressed the
merits of his appeal despite its tardiness because the handling of the appeal was
governed by 8 C.F.R. § 1103.3 and § 103.5(a)(3), which require that a decision on the
merits be made if an untimely appeal meets certain requirements. Whether these
regulations require a decision on the merits here is a question of law, which we have
jurisdiction to address.
Unfortunately for Mr. Ibarra-Terrazas, the regulations that he cites apply to
untimely appeals to decisions made by service officers. An appeal to the Board of an
immigration judge's decision, on the other hand, is governed by 8 C.F.R. § 1003.38
(previously 8 C.F.R. § 3.38), which states that a notice of appeal "shall be filed within
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30 calendar days after" the immigration judge's decision. The Board properly
dismissed his appeal as untimely and declared the immigration judge's decision final.
Affirmed.
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