                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 30, 2008
                                                                  Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                    Clerk of Court




    HAPPY ANAKOTTA,

               Petitioner,

    v.                                                  No. 07-9552
                                                    (Petition for Review)
    MICHAEL B. MUKASEY,
    Attorney General, *

               Respondent.


                             ORDER AND JUDGMENT **


Before McCONNELL, ANDERSON, and BRORBY, Circuit Judges.



         On November 2, 2005, an immigration judge denied petitioner Happy

Anakotta’s requests for asylum, restriction on removal, and protection under the


*
      On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Convention Against Torture. Under 8 C.F.R. § 1003.38, petitioner had thirty

days, or until December 2, 2005, in which to file an appeal to the Board of

Immigration Appeals (BIA or Board). On December 1, 2005, one day before it

was due, petitioner’s counsel sent a notice of appeal to the BIA via FedEx’s

“priority overnight” service. The notice of appeal did not arrive at the BIA until

December 5, 2007. 1

      After the BIA dismissed the appeal as untimely, petitioner filed a motion to

“reopen/reconsider.” Admin. R. at 8. Because petitioner failed to identify any

error of fact or law, the Board denied the motion, and this petition for review

followed. We deny the petition.

              A motion to reopen seeks to present evidence that “is material
      and was not available and could not have been discovered or
      presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also
      8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other
      hand, is available to raise errors of fact or law committed by the BIA
      in its prior decision, and must be supported by pertinent authority.
      8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1).


Mahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir. 2005). Because

petitioner did not present previously unavailable material evidence in support of

his motion, the BIA properly treated it as a motion to reconsider.

      We review the BIA’s denial of petitioner’s motion to reconsider for an

abuse of discretion. Belay-Gebru v. INS, 327 F.3d 998, 1000 n. 5 (10th Cir.

1
     “[T]he Board does not observe the ‘mailbox’ rule.” In re Liadov, 23 I. &
N. Dec. 990, 991 (2006).

                                         -2-
2003); cf. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (same with

regard to motion to reopen); 8 C.F.R. § 1003.2(a) (providing that “[t]he decision

to grant or deny a motion to reopen or reconsider is within the discretion of the

Board”). “We will reverse only if the BIA’s decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Mahamat,

430 F.3d at 1283 (quotation omitted) (reviewing motion to reopen). 2

      As mentioned above, petitioner had thirty days from November 2, 2005, in

which to file his notice of appeal. “The BIA’s deadline is . . . subject to

exceptions in ‘rare circumstances,’ even when the notice of appeal does not

actually arrive before the deadline.” Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir.

2005); see also BIA Practice Manual, Ch. 3.1(b)(iv), at 34 (rev. Nov. 6, 2007),

available at http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm. (noting

that delays in delivery do not affect filing deadlines “except in rare

circumstances”); see also id., Ch. 3.1(a)(iv) at 32 (rev. July 30, 2004) (“[F]ailure

of a courier or overnight delivery service does not excuse parties from meeting

filing deadlines.”).

      On appeal, petitioner argues that the BIA abused its discretion when it

denied his motion to reopen/reconsider as untimely without considering the

2
      Because petitioner did not appeal the BIA’s final order of removal to this
court within the thirty days provided, see 8 U.S.C. § 1252(b)(1), we review only
the BIA’s denial of his motion to reconsider.

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unique and extraordinary circumstances surrounding the failure of FedEx to

comply with its guaranteed-delivery promise. We disagree with petitioner’s

characterization of the BIA’s action. It is clear from its recitation of the pertinent

facts in its order denying the motion for reconsideration that the BIA considered

the circumstances surrounding the untimeliness of petitioner’s notice of appeal.

After that consideration, however, the BIA, citing In re Liadov, 21 I. & N. Dec.

990 (2006), concluded that “short delays in delivery are to be expected and do not

warrant consideration of an untimely appeal.” Admin. R. at 2. The BIA did not

abuse its discretion in so concluding.

      Petitioner cites cases in which circuit courts have remanded to the BIA to

consider, in the first instance, whether the petitioners had established the unique

or extraordinary circumstances sufficient to justify the discretionary exercise of

jurisdiction over late appeals where it was clear that the BIA had completely

failed to exercise its discretion. Khan v. U.S. Dep’t of Justice, 494 F.3d 255,

259-60 (2d Cir. 2007); Zhong Guang Sun v. U.S. Dep’t of Justice, 421 F.3d 105,

111 (2d Cir. 2005); Oh, 406 F.3d at 613. Those cases are inapposite because,

here, the BIA clearly understood the scope of its discretion and exercised it. The

BIA “acknowledge[d] the availability of relief in appropriate circumstances,”

Khan, 494 F.3d at 260, and further provided a rational explanation, supported by




                                          -4-
established policies, for denying the motion for reconsideration, see Mahamat,

430 F.3d at 1283. 3

      The petition for review is DENIED.


                                                  Entered for the Court



                                                  Michael W. McConnell
                                                  Circuit Judge




3
      To the extent petitioner is challenging the BIA’s refusal to deal with his
untimely appeal by accepting the case on certification under 8 C.R.F. § 1003.1(c),
we lack jurisdiction over that issue because there are no standards in 8 C.F.R.
§ 1003.1(c) by which we could judge the exercise, or non-exercise, of the
agency’s discretion. Mahamat, 430 F.3d at 1284.


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