                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2004

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2564




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                                                       NOT PRECEDENTIAL




                 IN THE UNITED STATES COURT
                          OF APPEALS
                     FOR THE THIRD CIRCUIT


                             NO. 03-2564


                              WEI LIN,
                              Petitioner

                                  v.

      JOHN ASHCROFT, Attorney General of the United States,
                       Respondent




On Petition for Review of an Order of the Board of Immigration Appeals
                           No. A77-309-511




           Submitted Pursuant to Third Circuit LAR 34.1(a)
                            July 2, 2004


  BEFORE: AM BRO, ALDISERT and STAPLETON, Circuit Judges


                    (Opinion Filed:    July 8, 2004)
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Petitioner, a native and citizen of the People’s Republic of China, seeks political

asylum and withholding of removal. This relief was denied by an Immigration Judge

(“IJ”) whose decision was affirmed by the Board of Immigration Appeals (“BIA”).

Following the BIA’s action, petitioner did not file a timely petition for review. He did,

however, file a timely motion for reconsideration. After this motion was denied, he filed

a timely notice of appeal of that denial.

       A petition for review “must be filed not later than 30 days after the date of the final

order of removal.” 8 U.S.C. § 1252(b)(1). This time period is “jurisdictional in nature

and must be construed with strict fidelity to [its] terms.” Stone v. INS, 514 U.S. 386, 405

(1995). The filing of a subsequent motion to reopen or reconsider a final order of

deportation does not toll the 30-day period for seeking review of the underlying order and

does not render the underlying order non-final. Id. at 394-406; see also Nocon v. INS,

789 F.2d 1028, 1032 (3d Cir. 1986) (neither filing a motion to reopen nor motion to

reconsider suspends the time for filing a petition for review of the underlying order).

       Petitioner did not file a timely petition for review of the BIA’s order affirming the



                                              2
IJ’s decision. Rather, he petitioned for review of the BIA’s April 24, 2003, decision

denying his motion to reconsider. To the extent that petitioner seeks to challenge in this

appeal the findings and conclusions of the IJ which the BIA affirmed, the Court lacks

jurisdiction to consider those issues. Stone, 514 U.S. at 405; accord Zhang v. INS, 348

F.3d 289, 292 (1st Cir. 2003) (holding that the court of appeals only had jurisdiction to

consider the BIA’s denial of an alien’s motion to reopen and reconsider, where the alien

never filed a petition for review of the BIA’s underlying decision); Zhao v. United States

Dept. of Justice, 265 F.3d 83, 89 (2d Cir. 2001) (same); Martinez-Serrano v. INS, 94 F.3d

1256, 1258 (9th Cir. 1996) (same), cert. denied, 522 U.S. 809 (1997).

       To the extent petitioner seeks to challenge the denial of his motion to reconsider,

he has advanced no argument before us which would warrant overturning the BIA’s

denial of his motion.

       The petition for review will be denied.




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