                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4441




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                                                           NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        ___________

                           NO. 07-4441
                           ___________

                     HAYRETTIN AKKAYA;
                       IPEK AKKAYA;
                      ATAKAN AKKAYA,

                                                       Petitioners

                                    v.

         ATTORNEY GENERAL OF THE UNITED STATES
            ____________________________________

               On Petition for Review of an Order of the
                    Board of Immigration Appeals
       (Agency Nos. A75-846-501, A45-647-111 & A45-647-112)
           Immigration Judge: Honorable Alberto J. Riefkohl
            _______________________________________

           Submitted Pursuant to Third Circuit LAR 34.1(a)
                            July 9, 2008

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges


                   (Opinion Filed        July 15, 2008 )


                             _________

                              OPINION
                             _________
PER CURIAM

       Petitioners seek review of an order of the Board of Immigration Appeals (“BIA”)

denying their motion to reconsider its previous dismissal as untimely of their appeal from

an order of removal issued by an Immigration Judge (“IJ”). For the following reasons, we

will deny their petition for review.

                                             I.

       Petitioners are natives and citizens of Turkey. The lead petitioner is Hayrettin

Akkaya; the others are his children, whose claims are derivative of his. They were

admitted as conditional permanent residents in 1998 by reason of the father’s marriage to

a United States citizen. His wife initially sponsored an I-751 petition to remove the

conditions on petitioners’ residence. In 2001, however, she obtained an annulment of the

marriage in New Jersey state court, which granted it after finding (as she had argued) that

the “marriage was the product of fraud . . . in that [the husband] was proceeding with the

pretended marriage for the sole purpose of securing United States citizenship[.]” (A.68.)

The wife thereafter withdrew her petition, and the government finally terminated

petitioners’ conditional residence status and filed a notice to appear charging them as

removable on that basis under 8 U.S.C. § 1227(a)(1)(D)(i).

       In a written decision issued June 29, 2007, and mailed on July 2, 2007, the IJ

found that the New Jersey annulment decree was conclusive and ordered petitioners’

removal to Turkey. Petitioners had 30 days from the date of mailing, or until August 1,



                                             2
2007, to appeal that decision to the BIA. See 8 C.F.R. § 1003.38(b); Popal v. Gonzales,

416 F.3d 249, 252 & n.1 (3d Cir. 2005). The BIA received petitioners’ notice of appeal

one day late, on August 2, and it was deemed filed on that day.     See 8 C.F.R.

§ 1003.38(c). By order dated August 24, 2007, the BIA dismissed the appeal as untimely.

Petitioners then filed a motion with the BIA to reopen. They conceded that the appeal

was technically late, but argued that (1) the untimeliness should be excused because it

resulted from a clerical error by counsel’s assistant, who mistakenly mailed the notice of

appeal to the wrong address, and (2) the time to appeal should be deemed to run from the

date they actually received the IJ’s order (July 5) instead of the July 2 date of mailing.

The BIA denied the motion by order dated October 23, 2007, and petitioners filed a

petition for review.

                                              II.

       We begin by clarifying that the BIA’s October 23 order is the only order before us.

We do not have jurisdiction to review the IJ’s underlying order of removal because

petitioners did not timely appeal that order to the BIA. See Bejar v. Ashcroft, 324 F.3d

127, 132 (3d Cir. 2003). For this reason, we may not and do not consider petitioners’

arguments that the IJ’s decision was erroneous. Nor do we have jurisdiction to review the

BIA’s initial order of August 24 dismissing petitioners’ appeal as untimely, because

petitioners did not file a petition for review in this Court within 30 days of that order. See

Stone v. INS, 514 U.S. 386, 405 (1995) (“[A] deportation order is final, and reviewable,



                                              3
when issued. Its finality is not affected by the subsequent filing of a motion to

reconsider.”); Nwogu v. Gonzales, 491 F.3d 80, 84 (2d Cir. 2007). Petitioners did,

however, timely petition for review of the October 23 order denying their motion to

reopen. Thus, we have jurisdiction to review that order under 8 U.S.C. § 1252(a). See

Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). We review the BIA’s denial of a

motion to reopen for abuse of discretion, and will disturb it “only if it was ‘arbitrary,

irrational, or contrary to law.’” Id. (citation omitted). In applying that standard, we

review legal conclusions de novo and review factual determinations for substantial

evidence. See id.1

       Petitioners, however, have raised no argument that the BIA abused its discretion in

denying their motion. Instead, they merely repeat the two arguments that they presented

to the BIA. We do not believe that the BIA abused its discretion in rejecting them.

Petitioners’ first argument is that their appeal, due on August 1 and received on August 2,

should be deemed timely because their counsel’s assistant mailed it on July 27 but

mistakenly directed it to the wrong address. The BIA rejected this argument by

explaining that it does not follow a “mailbox rule” and that appeals must actually be

received by the BIA within 30 days of the date on which an IJ mails a written order. The


 1
   Petitioners captioned their motion before the BIA as one for reopening, but the BIA
treated it as one for reconsideration and petitioners have referred to it as a motion for
reconsideration in all the papers they have filed with this Court. Although motions for
reopening and for reconsideration serve distinct purposes, the standard of review
applicable to both types of motions is the same. See Borges, 402 F.3d at 404.

                                              4
BIA’s understanding of the pertinent regulation is correct. See 8 C.F.R. § 1003.38(c);

Smith v. Conner, 250 F.3d 277, 279 (5th Cir. 2001). The BIA acted within its discretion

in applying the regulation, and petitioners have not cited any error of law, mistake of fact

or legal authority that might suggest otherwise.

       Petitioner’s second argument is that the appeal period should not have been

deemed to begin running on July 2, the date on the cover letter enclosing the IJ’s June 29

decision, because there is no evidence of record conclusively showing when the decision

was mailed and petitioners’ counsel did not actually receive it until July 5. The BIA

rejected this argument by explaining that, under 8 C.F.R. § 1003.38(b), the time for

appealing begins to run from the date on which the IJ mails a written decision, not from

the date on which a petitioner receives it. The BIA’s understanding of this regulation too

is correct. In applying it, the BIA must implicitly have found (as it did explicitly in its

initial order dismissing petitioners’ appeal) that the IJ mailed his decision on July 2.

Petitioners appear to argue that that conclusion is not supported by the record, but they are

wrong: the July 2 date on the cover letter supports the BIA’s conclusion that the decision

was mailed on that date. Moreover, “nothing in the record compels the conclusion that

the decision was not mailed on [July 2], as would be required to reverse a factual

determination made by the BIA as to timeliness.” Poole v. Mukasey, 522 F.3d 259, 263

(2d Cir. 2008).




                                               5
      In sum, the BIA did not act arbitrarily, irrationally or contrary to law in applying

the relevant regulations. Accordingly, petitioners’ petition for review will be DENIED.




                                             6
