                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        February 27, 2006
                              FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                          Clerk of Court


    MIGUEL A. NAVA MIER Y TERAN,

                Petitioner,

    v.                                                   No. 04-9586
                                                      (No. A76-723-358)
    ALBERTO R. GONZALES , *                          (Petition for Review)

                Respondent.


                              ORDER AND JUDGMENT **


Before HENRY, McKAY, and MURPHY, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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      This matter comes before us on the Petition for Review filed by petitioner

Miguel Nava Mier Y Teran and on the Motion to Dismiss in Part, Motion for

Summary Disposition in Part, and in the Alternative, Motion to Reset the Briefing

Schedule, filed by respondent, the United States Attorney General. Briefly, the

respondent argues in his motion that petitioner, a native and citizen of Mexico,

was placed in removal proceedings on March 14, 2003, and was ordered removed,

in absentia, when he failed to appear for his hearing before the Immigration

Judge (IJ). Petitioner filed a motion to reopen the proceedings with the IJ which

was denied by the IJ. This denial was summarily affirmed by the Board of

Immigration Appeals (BIA) on appeal. Petitioner subsequently filed a motion for

reconsideration with the BIA which was denied as untimely. Petitioner then filed

his petition with this court seeking review of the BIA’s denial of his motion for

reconsideration. His brief to this court, however, attacks the agency’s decision on

his motion to reopen, not its decision on the motion to reconsider. Respondent

argues (1) that this court has no jurisdiction to review the denial of the motion to

reopen, and (2) that the denial of the untimely motion to reconsider should be

summarily affirmed. We agree on both counts.

      The IJ’s order denying petitioner’s motion to reopen was entered July 3,

2003. The BIA’s decision affirming the IJ’s decision without opinion–and

thereby making the IJ’s decision the final agency determination–was entered


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May 25, 2004. Because 8 U.S.C. § 1252(b)(1) requires that a “petition for review

must be filed not later than 30 days after the date of the final order of removal,”

the last day petitioner could have filed a petition seeking review of the BIA’s

denial of the motion to reopen would have been June 24, 2004. 1 None was filed.

The fact that petitioner filed an untimely motion to reconsider on July 2, 2004,

does not change this fact. Stone v. INS, 514 U.S. 386, 395 (1995) (“[T]he filing

of [a] reconsideration motion does not toll the time to petition for review” of a

final removal order.). Consequently, this court has no jurisdiction to review the

agency’s denial of the motion to reopen.

      Petitioner’s September 17, 2004, petition for review with this court,

however, was filed within thirty days of the BIA’s August 19, 2004, decision that

denied petitioner’s motion for reconsideration as untimely. The petition for

review also states that petitioner is petitioning for review of the August 19, 2004,

order denying reconsideration. Petitioner argues in his response to the

government’s motion that, in reviewing the denial of the motion for

reconsideration, this court may revisit the agency’s denial of the motion to

reopen. In support of his argument, petitioner cites De Jimenez v. Ashcroft,

370 F.3d 783 (8th Cir. 2004). De Jimenez is easily distinguished from this case



1
      A denial of a motion to reopen is a final order that may be appealed to this
court. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004).

                                          -4-
and, in fact, supports this court’s ruling. In De Jimenez, the petitioner failed to

appear at her hearing allegedly because she was unable to locate the building

where the hearing was to be held and her child became ill. An order of removal

was entered and she moved to reopen. That motion was denied and she moved for

reconsideration of the order denying the motion to reopen. After her motion for

reconsideration was also denied on the merits, she petitioned for review and the

government argued that the court of appeals had no jurisdiction over the denial of

the motion to reopen because the petition was untimely filed as to that order. The

Eighth Circuit agreed that it only had jurisdiction to review the order denying the

motion to reconsider, not the denial of the motion to reopen. The court held,

however: “although we are not directly reviewing the BIA’s order denying

petitioner’s motion to reopen, our review of the denial of the motion to reconsider

may require us to consider the validity of that order.” Id. at 789. This holding

makes perfect sense in that to determine the propriety of a denial on the merits of

a motion to reconsider a previous decision, a court must examine that previous

decision. This does not help petitioner, however, because here the BIA denied the

motion to reconsider as untimely. No consideration of its previous order must be

undertaken by a court in order to determine the merits of the denial of

reconsideration.




                                          -5-
      Consequently, unlike the situation in De Jimenez, the question before

this court is whether the agency erred in denying petitioner’s motion for

reconsideration as untimely. It is clear that no error was made. The regulations

provide that “[a] motion to reconsider a decision must be filed with the Board

within 30 days after the mailing of the Board decision.” 8 C.F.R. § 1003.2(b)(2).

Petitioner waited until July 2, 2004, to file his motion to reconsider the BIA’s

May 25, 2004, decision. Further, petitioner does not argue on appeal that the BIA

erred in finding that his motion was untimely.

      Considering the above, respondent’s motion seeking dismissal in part and

summary disposition in part is GRANTED. The petition for review is

(1) DISMISSED for lack of jurisdiction to the extent it seeks review of the

agency’s denial of the motion to reopen, and (2) DENIED to the extent it seeks

review of the BIA’s order denying petitioner’s motion to reconsider.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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