Rrustem Neza v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 31, 2008
No. 07-13639 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-091-766
RRUSTEM NEZA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Nos. 07-13989 & 08-10655
Non-Argument Calendar
________________________
Agency Nos. A79-091-766
A79-091-767
RRUSTEM NEZA,
NURIE NEZA,
XHELADIN NEZA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 31, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Rrustem Neza, his wife, Nurie Neza, and their son, natives and citizens of
Albania, seek review of the Board of Immigration Appeals’ (BIA’s) three final
orders denying their motions to reopen and reconsider their application for asylum
and withholding of removal under the Immigration and Nationality Act (INA), and
relief under the Convention Against Torture (CAT). Neza petitioned this Court for
review of the following three BIA orders: (1) the August 7, 2007, denial of his
motion to stay removal;1 (2) the August 20, 2007, denial of his motion to
reconsider and amended motion to reopen pursuant to Matter of Lozada;2 and
1
Neza failed to raise any argument in his briefs to this Court regarding the BIA’s August
7, 2007, denial of his motion to stay removal. Accordingly, that issue has been abandoned on
appeal. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001).
2
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
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(3) the February 4, 2008, denial of his motion to reconsider the denial of his
amended motion to reopen based on changed country circumstances. On appeal,
however, Neza contends that he is seeking review of orders dated: August 20,
2007; November 7, 2007; and February 4, 2008. Each of these orders will be
discussed in turn below.
A petition for review of a final order of removal must be filed in this Court
within 30 days of the final order, and the time limitation is jurisdictional. 8 U.S.C.
§ 1252(b)(1); Dakane v. United States Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th
Cir. 2005).
“We review the BIA’s denial of a motion to reopen for an abuse of
discretion.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005). “Our review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Id. (internal quotations omitted). We shall decide the petition for
review “only on the administrative record on which the order of removal is based.”
8 U.S.C. § 1252(b)(4)(A). “Motions to reopen are disfavored, especially in a
removal proceeding, where, as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States.” Abdi, 430 F.3d at 1149 (internal quotations omitted).
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“A motion to reopen proceedings shall state the new facts that will be proven
at a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).
“Except as provided [in the regulatory exceptions], an alien may file only one
motion to reopen removal proceedings . . . and that motion must be filed no later
than 90 days after the date on which the final administrative decision was rendered
in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2); see also 8
U.S.C. § 1229a(c)(7)(A), (C). These time and numerical limitations do not apply
to motions to reopen that are, inter alia, (1) “based on changed circumstances
arising in the country of nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing;” (2) “agreed upon by all parties
and jointly filed;” or (3) filed by the Service. 8 C.F.R. § 1003.2(c)(3)(ii)-(iv).
An alien may file one motion to reconsider a decision that he or she is
removable, which must be filed with the BIA within 30 days of the date of entry of
a final order of removal, and must specify the errors of law or fact in the previous
order. Id. § 1003.2(b)(1)-(2); 8 U.S.C. § 1229a(c)(6). The finality of a removal
order is not affected by the subsequent filing of a motion to reconsider; hence,
motions to reconsider do not toll filing deadlines. Stone v. INS, 115 S. Ct. 1537,
1549 (1995).
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I. August 20, 2007 Order denying Neza’s July 11, 20073 Motion to Reconsider
and Amended Motion to Reopen Pursuant to Matter of Lozada
Neza asserts the BIA’s denial of his July 11, 2007, motion to reconsider and
amended motion to reopen as time and numerically barred was erroneous as a
matter of law because he met the requirements prescribed by Matter of Lozada.
We have held that “congressional filing deadlines should be read literally by
federal courts,” and time limitations are “jurisdictional and mandatory.” Abdi, 430
F.3d at 1150 (concerning a motion to reopen based on ineffective assistance); see
also Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (concerning ineffective
assistance in an in absentia removal order, stating “[f]iling deadlines inherently are
arbitrary and harsh,” and denying an exception to the 180-day filing deadline for
exceptional circumstances).
In Abdi, we acknowledged our previous holding in Anin, that “the 180-day
time limitation for motions to reopen filed pursuant to former . . . 8 U.S.C.
§ 1252b(c)(3)(A) (repealed 1996), for in absentia deportation orders could not be
equitably tolled on account of ineffective assistance of counsel.” Abdi, 430 F.3d at
1149-50. Applying the rationale of Anin to Abdi’s failure to timely file a motion to
reopen, where his removal order was not made in absentia, we stated that time
3
The record, the BIA’s August 20, 2007, order, and the Government all refer to Neza’s
July 2007 motion to reconsider and amended motion to reopen as having been filed on July 17,
2007. However, Neza’s motion was actually filed on July 11, 2007, a discrepancy that has no
effect on the analysis of Neza’s claims.
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limits are mandatory and jurisdictional, and, therefore, not subject to equitable
tolling. Id. at 1150. Further, we stated, “our reasoning in Anin is not specific to in
absentia orders.” Id.It is undisputed that Neza’s motion to reopen based on ineffective assistance
of counsel was not filed until July 11, 2007, nearly four years after the BIA’s
August 27, 2003, denial of his appeal of the IJ’s decision. Accordingly, Neza
failed to timely file his motion to reopen with the BIA, the BIA correctly
recognized that the deadline to file a motion to reopen was “jurisdictional and
mandatory,” and the BIA therefore did not err or abuse its discretion in denying
Neza’s motion. Abdi, 430 F.3d at 1150.
Neza asserts that the BIA does not have discretion to deny him the
opportunity to fully present his case. In Anin, however, this Court denied
petitioner’s motion to reopen based on ineffective assistance despite his removal
order being made in absentia. Anin, 188 F.3d at 1278. Here, Neza was given
notice of his hearing, and in fact testified before the IJ. His argument is therefore
unpersuasive, as this Court has denied a petition for review of a motion to reopen
where the petitioner was less able to fully present his case because he was not
present at his removal hearing.
Finally, even were this Court to recognize equitable tolling for ineffective
assistance claims, Neza failed to demonstrate due diligence, as Neza’s initial
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motion to reopen, filed in September 2003, failed to raise the issue of ineffective
assistance of counsel. Following the denial of that motion in November 2003,
Neza did not file another motion with the BIA until February 20, 2007. The
February 20, 2007, motion also did not raise the issue of ineffective assistance of
counsel. Accordingly, this Court should deny Neza’s petition.
Neza failed to timely file his motion to reopen with the BIA, and the BIA
recognized the deadline to file a motion to reopen was “jurisdictional and
mandatory.” Accordingly, the BIA did not err or abuse its discretion in denying
Neza’s motion.
II. November 7, 2007 Order denying Neza’s October 10, 2007 Amended Motion
to Reopen on Account of Changed Circumstances
Neza contends the BIA’s November 7, 2007, denial of his October 10, 2007,
amended motion to reopen ignored the record evidence and was erroneous as a
matter of law.
We review de novo whether this Court has subject-matter jurisdiction. See
Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002).
Neza failed to file a petition for review of the BIA’s November 7, 2007,
denial of his motion to reopen. Moreover, although Neza filed a motion on
November 13, 2007, to reconsider the November 7, 2007, order, that motion did
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not toll the time to appeal. See Stone, 115 S. Ct. at 1544. Accordingly, we lack
jurisdiction to review Neza’s petition to the extent it raises challenges to that order.
III. February 4, 2008 Order denying Neza’s November 13, 2007 Motion to
Reconsider Denial of Amended Motion to Reopen
Neza fails to address in his initial briefs to this Court the BIA’s February 4,
2008, denial of his November 13, 2007, motion to reconsider. Further, he
addresses that order only in passing in his reply brief.
As discussed in Issue Two, this Court only has jurisdiction to review the
BIA’s November 7, 2007, order insofar as it relied on that order in denying Neza’s
November 13, 2007, motion to reconsider in its February 4, 2008, order. Because
Neza failed to address or make any argument regarding the BIA’s February 4,
2008, order, that issue is deemed abandoned, and this Court will not address it. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001) (holding issues not
briefed on appeal are deemed abandoned). Neza only argues the BIA’s November
7, 2007, order was erroneous; an order for which Neza failed to file a petition for
review, and over which this Court lacks jurisdiction. Although Neza makes a
passing argument regarding the February 4, 2008, order in his reply brief, this
Court does not address arguments raised for the first time in a reply brief.
Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal
Comm’n, 453 F.3d 1309, 1316 n.7 (11th Cir. 2006) (holding we do not address
8
arguments raised for the first time in a reply brief). Accordingly, we deny the
Nezas’ petition.
PETITION DENIED IN PART, DISMISSED IN PART.
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