                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1129




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Shahinlli v. Atty Gen USA" (2007). 2007 Decisions. Paper 1806.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1806


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 05-1129
                                    ___________

                               FATIME SHAHINLLI,
                                ERVIN SHAHINLLI

                                                         Petitioners,

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                         Respondent.

                            ________________________

                              On Petition for Review from
                           the Board of Immigration Appeals
                              BIA No: A78-707-783/784
                              ______________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 11, 2006

                     Before: FUENTES, FISHER, and BRIGHT*
                                 Circuit Judges.

                           (Opinion Filed: January 8, 2007)




                                    ___________


  *
     The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
                                OPINION OF THE COURT
                                     ____________



FUENTES, Circuit Judge.

       Petitioners’ claims for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT) were denied by an immigration judge (IJ) and the

Board of Immigration Appeals (BIA). The BIA also denied a motion to reopen as well as

a subsequent motion to reconsider. Petitioners now seek review of these decisions. For

the reasons that follow, we will deny their petition.

                                             I.

       Ervin Shahinlli entered the United States from Albania in September 1999 as a

sixteen-year-old exchange program student. His mother, Fatime Shahinlli, entered the

United States as a visitor in December 1999. Having overstayed her visa, Fatime

Shahinlli filed for asylum, withholding of removal, and protection under CAT in

September 2000. Ervin was included in the application as a minor child. Fatime stated

that she and her family had been persecuted in Albania by the Socialist Party because of

their active membership in the Democratic Party.

       In March 2001, an IJ denied the petition, concluding that the Shahinllis had

probably been persecuted by a criminal gang seeking to extort money. The BIA

summarily affirmed in December 2002. In March 2004, the Shahinllis filed a motion

with the BIA to reopen their case, arguing that country conditions in Albania had

                                              2
worsened. On June 1, 2004, the BIA denied the motion to reopen, holding that it was

untimely and that changed country conditions did not justify the late filing. The

Shahinllis then filed a motion to reconsider, which was denied by the BIA in November

2004. The Shahinllis filed a petition for review with the U.S. Court of Appeals for the

First Circuit in December 2004, and it was transferred to this Court in January 2005.

                                              II.

         The Shahinllis do not present arguments that challenge the BIA’s denial of their

motion for reconsideration. In their brief, the Shahinllis focus only on the initial denial of

their claims and assert that they presented ample evidence of political persecution. We do

not have jurisdiction, however, to review the denial of the Shahinllis’ underlying claims.

Under 8 U.S.C.§ 1252(b)(1), “[t]he petition for review must be filed not later than 30

days after the date of the final order of removal,” but the Shahinllis waited almost two

years.

         The Shahinllis do not dispute that their petition was filed long after the BIA

affirmed the IJ’s decision in December 2002. Instead, they contend that we can review

the underlying claims pursuant to 8 U.S.C. § 1252(b)(6), which states that “any review

sought of a motion to reopen or reconsider the order shall be consolidated with the review

of the order.” This argument is foreclosed by Stone v. INS, 514 U.S. 386 (1995), where

the Supreme Court concluded that a motion to reconsider does not toll the time within

which an alien must seek review of an order of deportation. The Court held that “[t]he

consolidation provision . . . reflects Congress’ understanding that a deportation order is

                                               3
final, and reviewable, when issued. Its finality is not affected by the subsequent filing of

a motion to reconsider. The order being final when issued, an alien has 90 days from that

date to seek review.” 514 U.S. at 405-06.1 The Shahinllis also contend that they could not

have sought review at an earlier time because the motion to reconsider was filed in

accordance with the requirement that they exhaust their administrative remedies. Such an

interpretation of the exhaustion requirement is not consistent with the Supreme Court’s

reasoning and holding in Stone or with the fact that we routinely review petitions when

applicants have not filed motions to reopen and to reconsider.

                                            III.

       We do not have jurisdiction to review the denial of the Shahinllis’ claims for

asylum, withholding of removal, and protection under CAT. Further, their brief does not

raise arguments with regard to the BIA’s denial of their motion to reopen and motion to

reconsider. For these reasons, we will deny the petition.




  1
     The Immigration and Nationality Act (INA) was amended after Stone and aliens
now have only 30 days to seek review of a deportation order. In addition, the
consolidation provision was codified at § 106(a)(6) of the INA when Stone was decided,
while today it is at § 242(b)(6).

                                              4
