Thomas Ombuya Omao v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3222
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Thomas Ombuya Omao, *
*
Petitioner, * Petition for Review of an
* Order of the Board of Immigration
v. * Appeals.
*
Alberto Gonzales, Attorney General * [UNPUBLISHED]
of the United States of America, *
*
Respondent. *
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Submitted: June 16, 2006
Filed: June 22, 2006
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Before ARNOLD, BEAM, Circuit Judges, DOTY,1 District Judge
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PER CURIAM.
Petitioner Thomas Omao seeks review of a final order of the Board of
Immigration Appeals (BIA), which dismissed as untimely Omao's appeal from the
Immigration Judge's (IJ) determination of removability and denial of Omao's
cancellation of removal and application for voluntary departure. Also before us is the
government's motion to dismiss. We grant the government's motion and dismiss the
petition for lack of jurisdiction.
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
Omao's appeal from the IJ's December 8, 2004, order was due on or before
January 7, 2005, thirty days after the decision. See 8 C.F.R. § 1003.38(b). Omao
filed an untimely appeal on January 11, 2005. The BIA's order was only concerned
with the timeliness of Petitioner's appeal. According to the BIA's order, Petitioner's
recourse was either to file a motion to reconsider with the BIA, or a motion to reopen
with the IJ. Petitioner claims he did not file a motion to reconsider because such a
motion would have been futile. However, the BIA set out the proper course for Omao
to follow.
Even though Omao clearly acknowledges the tardiness of his appeal to the BIA,
he urges us to reach the merits of his petition because due process considerations
prevail in this instance. He claims that his interests in immediate judicial review
outweigh the government's interests in the efficiency of administrative autonomy that
the exhaustion doctrine is designed to further. We find this argument unavailing. It
is true that relief from an untimeliness ruling might be granted on procedural due
process grounds in certain circumstances, Somakoko v. Gonzales, 399 F.3d 882, 883
(8th Cir. 2005), but not where, as here, the ruling was from the BIA's dismissal,
Petitioner has failed to demonstrate that his proceedings were fundamentally unfair
and there is nothing unique warranting review. See Atiqullah v. INS, 39 F.3d 896,
898 (8th Cir. 1994) (per curiam) (applying former statutory language regarding
appeals and recognizing that generally the time limit for filing notice of appeal to BIA
is mandatory and jurisdictional but that in unique circumstances if a party is misled
by words or conduct of court, an appellate tribunal may have jurisdiction to hear an
otherwise untimely appeal).
Given the procedural stature of this case, we find that we lack jurisdiction to
review Omao's petition and grant the government's motion to dismiss.
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