Carlos Contreras-Martinez v. Jefferson Sessions, I

Case: 17-60613 Document: 00514686637 Page: 1 Date Filed: 10/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60613 FILED
Summary Calendar October 17, 2018
Lyle W. Cayce
Clerk
CARLOS ERNESTO CONTRERAS-MARTINEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206-798-279
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Carlos Ernesto Contreras-Martinez, a citizen of Honduras, challenges
the denial of his applications for asylum, withholding of removal, and
Convention Against Torture (CAT) relief. The immigration judge held that the
record contained insufficient evidence to establish that the threats Contreras-
Martinez received were actually motivated by his religion or his status as a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-60613 Document: 00514686637 Page: 2 Date Filed: 10/17/2018
No. 17-60613
missionary. The Board of Immigration Appeals affirmed the denial of all three
applications, concluding that there was no clear error in the judge’s findings.
On appeal, Contreras-Martinez argues that relief is warranted due to
membership in a particular social group (namely, “young, male, Christian
missionaries”), religious persecution, and attempted gang recruitment.
But Contreras-Martinez’s petition is untimely. Petitions for review of
BIA orders “must be filed not later than 30 days after the date of the final order
of removal.” 8 U.S.C. § 1252(b)(1). The deadline is mandatory and
jurisdictional. Stone v. INS, 514 U.S. 386, 405 (1995); Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). We have construed section 1252 to
place an affirmative duty on the BIA to serve the petitioner with a copy of its
decision. Ouedraogo v. INS, 864 F.2d 376, 378 (5th Cir. 1989). The 30-day
clock therefore begins to run once the “BIA complies with the terms of federal
regulations by mailing its decision to petitioner’s address of record.” Id.
When the record contains a dated transmittal letter sending the BIA
decision to the immigrant, that date will generally start the appellate clock.
Karimian-Kalaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993); see also Ibrik v.
INS, 108 F.3d 596, 597 (5th Cir. 1997) (per curiam) (using the existence of a
transmittal letter as evidence of when the BIA opinion was entered). If there
is no transmittal letter and the petitioner claims to have not received notice of
the decision, then we may find a petition filed more than 30 days from when
the decision was released to be timely. Ouedraogo, 864 F.2d at 378. Likewise,
the petitioner may present evidence that the transmittal letter was not
actually mailed on the day it was dated, which could potentially prevent the
clock from beginning to run. Karimian-Kalaki, 997 F.2d at 111. But simply
raising “unsupported, general” assertions will not be enough to negate
“objective evidence of the transmittal letter included in the record on appeal.”
2
Case: 17-60613 Document: 00514686637 Page: 3 Date Filed: 10/17/2018
No. 17-60613
Id. This is particularly the case if the petitioner does not dispute having
received notice. Id.
The BIA decision denying relief to Contreras-Martinez is dated August
8, 2017. The record contains two transmittal letters, one addressed to
Contreras-Martinez and one addressed to his counsel. Both are also dated
August 8, 2017. Contreras-Martinez has not argued that he did not receive
these letters. In fact, both he and the Attorney General erroneously assert that
the petition for review was timely.
The appeals period therefore started to run on the date of the BIA
decision, August 8, 2017. Contreras-Martinez’s petition for review was due 30
days later, on September 7. See § 1252(b)(1). This court did not receive the
petition until September 8. Although Contreras-Martinez missed the deadline
by just one day, we strictly enforce the jurisdictional 30-day requirement. See
Navarro-Miranda, 330 F.3d at 676; Guirgas v. INS, 993 F.2d 508, 509–10 (5th
Cir. 1993) (dismissing case because petition was filed one day late). We
therefore lack jurisdiction to hear Contreras-Martinez’s appeal.
***
The petition for review is DISMISSED for lack of jurisdiction.
3