                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3459




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                                        NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


              No. 04-3459


          NURIJE SAITOSKA,

                         Petitioner

                    v.

*ALBERTO R. GONZALES, Attorney General
          of the United States

                         Respondent


               No. 04-3460


              MAFI KUPI,

                         Petitioner

                   v.

*ALBERTO R. GONZALES, Attorney General
          of the United States

                         Respondent

                 *Substituted pursuant to Rule 43c, F.R.A.P.


     On Appeal from Orders entered by
     The Board of Immigration Appeals
           No. A95-144-576/5
                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 15, 2005

                      Before: BARRY, and AMBRO, Circuit Judges
                               POLLAK**, District Judge

                                  (Filed January 6, 2006)



                                        OPINION


AMBRO, Circuit Judge

       This is an immigration case in which petitioners, Mafi Kupa, and his wife, Nurije

Saitoska, seek review of a decision of the Board of Immigration Appeals (BIA)

summarily dismissing their appeal for failure to file an appellate brief concerning an

immigration judge’s decision denying their requests for asylum, withholding of removal,

and protection pursuant to the Convention Against Torture (CAT). For the reasons

provided below, we affirm.

       Kupa and Saitoska are natives and citizens of Macedonia who entered the United

States at Detroit, Michigan, on April 20, 2001. On August 2, 2001, Kupa filed

an application for asylum, including his wife and son, Argjent, as derivative applicants.

Kupa claimed that he had been mistreated in Macedonia due to his nationality,



      **Honorable Louis H. Pollak, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
membership in a particular social group, and political opinion.

                                             2
       The Government agency then charged with such matters—the Immigration and

Naturalization Service (“INS”)—placed Kupa and Saitoska in removal proceedings on

October 1, 2001, charging that they had entered the United States without being admitted

or paroled by an immigration officer. At an April 4, 2002, master calendar hearing,

petitioners admitted the charges as amended to reflect the correct date and place of their

entry into the United States, and conceded removability. They also indicated an intent to

seek asylum, withholding of removal, and CAT protection.

       An immigration judge (IJ) conducted a merits hearing on March 3, 2003. On

March 6, 2003, the IJ issued an oral decision denying the application for asylum,

withholding of removal, and CAT protection, and ordered that petitioners be removed to

Macedonia.1 On July 27, 2004, the BIA summarily dismissed petitioners’ appeal, noting

that they had elected in their notice of appeal to submit a written brief but had failed to do

so. Shortly thereafter, Kupa filed a motion to reconsider, and included a written

statement from his counsel explaining that the brief had been timely filed, but that it was

probably attached to the wrong case. Included with his motion to reconsider was Kupa’s

brief arguing that the IJ applied the wrong standard of proof.

       Despite the pending and timely filed motion to reconsider, on August 25, 2004,

Kupa and Saitoska separately filed petitions for review with this Court, along with

motions to stay removal. On November 9, 2004, we denied the motions to stay removal.

On November 19, 2004, the BIA granted petitioners’ motion to reconsider, reviewed their

       1
        The IJ also issued a written decision on April 4, 2005.

                                              3
appeal on the merits, and upheld the IJ’s adverse credibility determination. On December

15, 2004, we consolidated petitioners’ petitions for review of the Board’s July 27, 2004

order.

         The Government contends that our Court lacks jurisdiction to review the

consolidated petitions for review. We agree. As noted above, prior to seeking review of

the BIA’s July 27, 2004 order, petitioners filed a motion to reconsider with the BIA,

arguing that, contrary to the BIA’s July 27 order, they had in fact timely filed an appellate

brief. As noted, on November 19 the BIA granted reconsideration and reinstated

petitioners’ appeal to it, but then affirmed their appeals on the merits. Petitioners did not

petition for review of the BIA’s November 19 decision. Thus, while we had jurisdiction

to review the BIA’s July 27 summary dismissal order, that decision was rendered moot by

the BIA’s November 19 final order.

         The only issue before us in a review of the BIA’s July 27 decision would have

been whether the BIA properly exercised its discretion in summarily dismissing the

petitioners’ appeal for failure to file an appellate brief. However, that issue is no longer

in controversy, as the BIA has already decided it in petitioners’ favor. Therefore, we

dismiss the consolidated petitions for review of the BIA’s July 27 order as moot.

Moreover, because the petitioners have not petitioned for review of the BIA’s merits

denial of their appeal (the November 19 order), we have no jurisdiction to review that

ruling. See 8 U.S.C. § 1252(b)(1).




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