Luis A. Gutierrez v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 2, 2006
No. 05-13798
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-543-336
LUIS A. GUTIERREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 2, 2006)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Luis A. Gutierrez seeks review of the final order by the Board of
Immigration Appeals (“BIA”) affirming the decision of the immigration judge
(“IJ”), which denied his petition for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”) and the United Nations Convention on
Torture, etc. (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). After
review, we dismiss the petition for review for lack of jurisdiction to the extent it
seeks review of the BIA’s April 14, 2005 final order. We deny the petition to the
extent it seeks review of the BIA’s June 15, 2005 order denying Gutierrez’s motion
for reconsideration.
I. BACKGROUND
Gutierrez, a native and citizen of Colombia, was admitted to the United
States on March 11, 2001, as a non-immigrant visitor and was authorized to stay
until September 10, 2001. Gutierrez remained in the United States past that date
and, on May 6, 2002, filed an application for asylum and withholding of removal.
The Immigration and Naturalization Service issued a Notice to Appear, charging
Gutierrez with removability.
After an asylum hearing, the IJ denied Gutierrez all relief and ordered his
removal. The IJ determined that Gutierrez’s asylum claim was time-barred
because he had not filed his asylum application within one year after he had
entered the United States, as required by INA § 208(a)(2)(D), 8 U.S.C. §
21158(a)(2)(B), and had failed to show exceptional circumstances to excuse his
delay. Alternatively, the IJ found that Gutierrez did not meet his burden of proof
to show eligibility for asylum, withholding of removal or CAT relief.
Gutierrez appealed the IJ’s order of removal to the BIA. On April 14, 2005,
the BIA adopted and affirmed the IJ’s decision and dismissed Gutierrez’s appeal.
On April 25, 2005, Gutierrez filed a motion for reconsideration, which the BIA
denied on June 15, 2005. Gutierrez filed his petition for review with this Court on
July 11, 2005. The government moved to dismiss this appeal for lack of
jurisdiction, arguing that Gutierrez’s petition for review is untimely.
II. DISCUSSION
A. April 14, 2005 Final Order
A petitioner must file a petition for review with this Court within thirty days
after the date of the final order of removal. 8 U.S.C. § 1252(b)(1). “Since the
statutory limit for filing a petition for review in an immigration proceeding is
‘mandatory and jurisdictional,’ it is not subject to equitable tolling.” Dakane v.
United States Att’y Gen., 399 F.3d 1269, 1272 n.3 (11 th Cir. 2005) (citing Stone v.
INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 1549 (1995)). The finality of a removal
order is not affected by the filing of a motion to reconsider. Stone, 514 U.S. at
405, 115 S. Ct. at 1549.
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Here, the BIA’s April 14, 2005 order, affirming the IJ’s decision and
dismissing Gutierrez’s appeal, was a final order of removal. See 8 C.F.R. §
1241.1(a). Gutierrez filed his petition for review on July 11, 2005, more than
thirty days after the BIA’s April 14, 2005 final order. Thus, we lack jurisdiction to
review the April 14, 2005 final order.
B. June 15, 2005 Order Denying Motion for Reconsideration
Because Gutierrez’s petition for review was filed within thirty days of the
BIA’s June 15, 2005 order denying his motion for reconsideration, we have
jurisdiction to review that order. We review the BIA’s denial of a motion for
reconsideration for an abuse of discretion. Assa’ad v. United States Att’y Gen.,
332 F.3d 1321, 1341 (11 th Cir. 2003). However, when an argument is not raised in
the initial brief before this Court, the argument is deemed abandoned on appeal.
Mendoza v. United States Att’y Gen., 327 F.3d 1283, 1286 n.3 (11 th Cir. 2003).
Gutierrez does not challenge the denial of his motion for reconsideration in
his appeal brief. Instead, his arguments focus on his underlying asylum and
withholding of removal claims and the merits of the BIA’s April 14, 2005 order.
Therefore, Gutierrez has abandoned his claim with regard to the BIA’s June 15,
2005 order denying his motion for reconsideration.
For the above stated reasons, we dismiss the petition as it relates to the April
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14, 2005 order affirming the IJ’s order of removal and deny the petition as it
relates to the June 15, 2005 order denying Guitierrez’s motion for reconsideration.
DISMISSED IN PART, DENIED IN PART.
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