Shahinlli v. Attorney General of the United States

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-8-2007
Shahinlli v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1129
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"Shahinlli v. Atty Gen USA" (2007). 2007 Decisions. Paper 1806.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-1129
___________
FATIME SHAHINLLI,
ERVIN SHAHINLLI
Petitioners,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
________________________
On Petition for Review from
the Board of Immigration Appeals
BIA No: A78-707-783/784
______________________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2006
Before: FUENTES, FISHER, and BRIGHT*
Circuit Judges.
(Opinion Filed: January 8, 2007)
___________
*
The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
____________
FUENTES, Circuit Judge.
Petitioners’ claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) were denied by an immigration judge (IJ) and the
Board of Immigration Appeals (BIA). The BIA also denied a motion to reopen as well as
a subsequent motion to reconsider. Petitioners now seek review of these decisions. For
the reasons that follow, we will deny their petition.
I.
Ervin Shahinlli entered the United States from Albania in September 1999 as a
sixteen-year-old exchange program student. His mother, Fatime Shahinlli, entered the
United States as a visitor in December 1999. Having overstayed her visa, Fatime
Shahinlli filed for asylum, withholding of removal, and protection under CAT in
September 2000. Ervin was included in the application as a minor child. Fatime stated
that she and her family had been persecuted in Albania by the Socialist Party because of
their active membership in the Democratic Party.
In March 2001, an IJ denied the petition, concluding that the Shahinllis had
probably been persecuted by a criminal gang seeking to extort money. The BIA
summarily affirmed in December 2002. In March 2004, the Shahinllis filed a motion
with the BIA to reopen their case, arguing that country conditions in Albania had
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worsened. On June 1, 2004, the BIA denied the motion to reopen, holding that it was
untimely and that changed country conditions did not justify the late filing. The
Shahinllis then filed a motion to reconsider, which was denied by the BIA in November
2004. The Shahinllis filed a petition for review with the U.S. Court of Appeals for the
First Circuit in December 2004, and it was transferred to this Court in January 2005.
II.
The Shahinllis do not present arguments that challenge the BIA’s denial of their
motion for reconsideration. In their brief, the Shahinllis focus only on the initial denial of
their claims and assert that they presented ample evidence of political persecution. We do
not have jurisdiction, however, to review the denial of the Shahinllis’ underlying claims.
Under 8 U.S.C.§ 1252(b)(1), “[t]he petition for review must be filed not later than 30
days after the date of the final order of removal,” but the Shahinllis waited almost two
years.
The Shahinllis do not dispute that their petition was filed long after the BIA
affirmed the IJ’s decision in December 2002. Instead, they contend that we can review
the underlying claims pursuant to 8 U.S.C. § 1252(b)(6), which states that “any review
sought of a motion to reopen or reconsider the order shall be consolidated with the review
of the order.” This argument is foreclosed by Stone v. INS, 514 U.S. 386 (1995), where
the Supreme Court concluded that a motion to reconsider does not toll the time within
which an alien must seek review of an order of deportation. The Court held that “[t]he
consolidation provision . . . reflects Congress’ understanding that a deportation order is
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final, and reviewable, when issued. Its finality is not affected by the subsequent filing of
a motion to reconsider. The order being final when issued, an alien has 90 days from that
date to seek review.” 514 U.S. at 405-06.1 The Shahinllis also contend that they could not
have sought review at an earlier time because the motion to reconsider was filed in
accordance with the requirement that they exhaust their administrative remedies. Such an
interpretation of the exhaustion requirement is not consistent with the Supreme Court’s
reasoning and holding in Stone or with the fact that we routinely review petitions when
applicants have not filed motions to reopen and to reconsider.
III.
We do not have jurisdiction to review the denial of the Shahinllis’ claims for
asylum, withholding of removal, and protection under CAT. Further, their brief does not
raise arguments with regard to the BIA’s denial of their motion to reopen and motion to
reconsider. For these reasons, we will deny the petition.
1
The Immigration and Nationality Act (INA) was amended after Stone and aliens
now have only 30 days to seek review of a deportation order. In addition, the
consolidation provision was codified at § 106(a)(6) of the INA when Stone was decided,
while today it is at § 242(b)(6).
4