     06-2169-ag
     Nwogu v. Gonzales



 1                             UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                          August Term, 2006
 8
 9       (Argued: May 3, 2007                                             Decided: June 19, 2007
10                                                                        Amended: June 20, 2007)
11                                        Docket No. 06-2169-ag
12
13
14
15
16                                     CHUKS GODDY NWOGU,
17
18                                              Petitioner,
19
20                                                 – v. –
21
22                   ALBERTO GONZALES, Attorney General of the United States,,
23
24                                              Respondent.
25
26
27
28
29   Before: WINTER, CALABRESI, and SOTOMAYOR, Circuit Judges.
30
31           Petition for review from the Board of Immigration Appeals. Upon due consideration of
32   this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby
33   ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
34
35          Judge Winter concurs in a separate opinion.
36
37
38                                        Robert A. Ratliff, Mobile, AL., for Petitioner.
39
40                                        Kristin L. Vassallo & Sara L. Shudofsky, Assistant U.S.
41                                        Attorneys, for Michael J. Garcia, U.S. Attorney for the
42                                        Southern District of New York, for Respondent.

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 12
  3
  4
  5   PER CURIAM:

 6           Chuks Goddy Nwogu, a native and citizen of Nigeria, petitions for review of the BIA’s April

 7    10, 2006 decision denying as untimely his motion for the BIA to reconsider its January 24, 2006

 8    decision dismissing as untimely his appeal from Immigration Judge (“IJ”) Joe Miller’s September

 9    8, 2005 removal order. After the IJ found that Nwogu’s second-degree grand larceny offense in New

10    York State rendered him removable as an aggravated felon under federal immigration law, see 8

11    U.S.C. § 1101(a)(43)(G), and that he was not eligible for relief from removal, Nwogu sought to

12    appeal the decision to the BIA. Although the incarcerated petitioner states that he placed his appeal

13    papers in the mail more than one week before the deadline for appeal from the IJ decision, the BIA’s

14    official time stamp indicates that the Board received the appeal one day after the deadline.

15           At stake in this case is Nwogu’s ability to have considered by the BIA the merits of his appeal

16    of the IJ’s denial of his relief from removability. For the reasons stated below, we deny Nwogu’s

17    petition for review.

18                                             BACKGROUND

19           Nwogu entered the United States as a permanent legal resident on February 14, 1999. On

20    October 9, 2003, Nwogu pled guilty to a New York State offense of second-degree grand larceny and

21    was sentenced to prison for a term of four to twelve years. Nwogu’s appeal from the conviction was

22    denied by the Appellate Division.

23           On April 26, 2005, the Department of Homeland Security (DHS) served Nwogu with a Notice

24    to Appear that charged him as removable because of his conviction and one-year sentence for an



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 1   aggravated felony under federal immigration law, see 8 U.S.C. § 1101(a)(43)(G). On September 8,

 2   2005, the IJ concluded that, by clear and convincing evidence, Nwogu is not eligible for cancellation

 3   of removal or adjustment of status because he is an aggravated felon and a lawful permanent resident.

 4   The IJ stated: “There being no other relief available [to] Mr. Nwogu, he is ordered removed from the

 5   United States and deported to Nigeria.” The IJ informed Nwogu of the time requirements should he

 6   wish to appeal:

 7      Sir, I’m going to ask the gentlemen there to give you your appeals package. You fill it out,
 8      you sign it, you send it in. Make sure you get it right the first time. Because if you don’t get
 9      it right the first time, they’re going to send it back to you and your 30 days is running all that
10      time. And you will not get even one day extra. They will not take it if you send it in one day
11      after October 11th. If you don’t have it there by October 11th or before, then they will not
12      give you your time and then you will not have an appeal in Court.

13   (emphasis added).

14          Following this decision, the relevant events center around deadlines missed by Nwogu. First,

15   Nwogu sent the IJ a letter dated September 12, 2005 (received September 21, 2005) in which he

16   “humbly request[ed]” that the IJ extend the appeal deadline to “allow[] me to submit an application

17   for Stay of removal which I am preparing” and to “obtain [new] reliable legal representation.” A

18   letter of October 3, 2005 informed Nwogu that the IJ has no authority to extend the deadline and

19   provided Nwogu with a copy of the regulation governing motions to reopen or reconsider his case.

20          Nwogu finally appealed the IJ’s September 8, 2005 decision in papers dated September 22,

21   2005. Petitioner’s affidavit of service indicates that he “placed in the mailbox at the Clinton

22   Correctional Facility” his notice of appeal on October 3, 2005, but the BIA’s official date and time

23   stamp indicate that the Board received the appeal on October 12, 2005 at 9:16am.

24          On January 24, 2006, the BIA issued a per curiam opinion holding that Nwogu’s October



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 1   2005 “appeal is untimely” because it was received one day after the statutory limit. It stated:

 2      A Notice of Appeal . . . must be filed within 30 calendar days of an [IJ]’s oral decision . . .
 3      . See 8 C.F.R. §§ 1003.38(b), (c). In the instant case, the [IJ]’s decision was rendered orally
 4      on September 8, 2005. The appeal was accordingly due on or before October 11, 2005. The
 5      record reflects, however, that the Notice of Appeal was filed with the [BIA] on October 12,
 6      2005.
 7   The BIA also informed the parties that:

 8      If you wish to file a motion to reconsider challenging the finding that the appeal was
 9      untimely, you must file your motion with the Board. However, if you are challenging any
10      other finding or seek to reopen your case, you must file your motion with the Immigration
11      Court. You should also keep in mind that there are strict time and number limits on motions
12      to reconsider and motions to reopen.
13   (second emphasis in original) (citations omitted).

14          In response to this decision, Nwogu asked the BIA to reconsider its January 24, 2006

15   decision. In support of his motion for reconsideration, Nwogu stated that he had mailed the Notice

16   of Appeal on October 3, eight days before the receipt deadline, and that he had “no control over the

17   delay that caused the letter to take nine days to travel from New York to Virginia, and that any

18   reasonable person would have thought 9 days a sufficient amount of time . . . .”

19          On March 3, 2006, the BIA rejected Nwogu’s motion for reconsideration – which it stated

20   was received on February 27, 2006 – because Nwogu failed to include “[t]he required fee of $110.00

21   or Fee Waiver Request form.” In its notice rejecting Nwogu’s motion, the BIA specified:

22      We have returned your motion and all attachments to you for timely correction of the
23      defect(s). THIS DOES NOT EXTEND THE ORIGINAL STRICT TIME LIMITS within
24      which you must file your motion.
25      Your motion must be RECEIVED at the Clerk’s Office at the Board of Immigration Appeals
26      within the prescribed time limits. It is NOT sufficient simply to mail the motion within the
27      time limits.
28      Any corrected motion resubmitted after the original time limits should be filed within 15 days
29      of the date of this notice and should include a request that the Board accept the motion by
30      certification. The Board will consider whether to accept each request in the exercise of
31      discretion.

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 1   On March 14, 2006, the BIA received Nwogu’s corrected motion for reconsideration, but Nwogu

 2   failed to submit the required request that the Board accept the motion by certification.

 3           A BIA per curiam opinion on April 10, 2006 denied as untimely Nwogu’s motion to

 4   reconsider. The Board explained that:

 5      A motion to reconsider in any case previously the subject of a final decision by the Board
 6      must be filed no later than 30 days after the date of that decision. In the instant case, a motion
 7      to reconsider would have been due on or before February 23, 2006. The record reflects,
 8      however, that the Board did not receive the respondent’s motion until February 27, 2006, and
 9      that it was rejected for filing defects. [Nwogu’s] motion was not filed with the Board until
10      March 14, 2006. The motion to reconsider was therefore filed out of time. Accordingly, the
11      motion to reconsider is denied.

12   (emphasis added). In a footnote, the BIA acknowledged that Nwogu’s motion for reconsideration

13   turned on his claim that he had mailed his notice of appeal of the IJ decision “eight days before the

14   filing deadline,” but the BIA disputed that alleged mailing date and reiterated that “the Board does

15   not observe the mailbox rule (accepting the mailing date as the filing date).”


16           On May 10, 2006, Nwogu filed a petition for review with our court. In his brief, Nwogu

17   “asks that this Court find that the original notice of appeal filed by the Petitioner pro se was in fact

18   timely filed and remand this matter” to the BIA for consideration on the merits. Petitioner states that

19   “[t]he sole proposed issue is whether Mr. Nwogu’s Notice of Appeal following an [IJ]’s

20   determination of deportation was timely filed and therefore the [BIA]’s dismissal of said appeal was

21   improper and Mr. Nwogu should be allowed to refile his appeal and have it decided on its merits.”

22   Id. In response, the government contends, first, that Nwogu cannot challenge the BIA’s January 24,

23   2006 decision dismissing his appeal because he failed to petition timely for review of that decision;




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 1   second, that Nwogu has waived any challenge to the April 10, 2006 decision; and third, that the BIA

 2   acted within its discretion in denying as untimely Nwogu’s motion for reconsideration.

 3                                             DISCUSSION

 4          An abuse of discretion may be found where the BIA’s decision “provides no rational

 5   explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains

 6   only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or

 7   capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations

 8   omitted). The BIA has defined a motion to reconsider as “‘a request that the Board reexamine its

 9   decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect

10   of the case which was overlooked.’” In re Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA 1991) (citation

11   omitted). BIA regulations establish that a motion to reconsider must specify errors of fact or law in

12   the BIA decision and be supported by relevant authority. See 8 C.F.R. § 1003.2(b)(1); Zhao, 265

13   F.3d at 90.

14          It would be troubling if the one-day late arrival of Nwogu’s original appeal barred that

15   appeal, given Nwogu’s assertion that the delay was beyond his control because his incarceration

16   precluded access to any means of delivery that would avoid the risk of regular mail.1 In Zhong

17   Guang Sun v. U.S. Dep’t of Justice, we concluded that the BIA “erred in indicating that it was unable

18   under any circumstance . . . to hear an untimely appeal.” 421 F.3d 105, 106 (2d Cir. 2005). We

19   acknowledged that Federal Rule of Appellate Procedure 25(a)(2)(A) provides that timely “filing”

20   is breached “unless the clerk receives the papers within the time fixed for filing,” and that BIA

21   regulations mirror this definition, see 8 C.F.R. § 1003.38(c) (defining filing date for appeal to the


            1
                In saying this we, of course, express no view on the merits of Nwogu’s appeal.

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 1   BIA as “the date the Notice is received by the [BIA]”) (emphasis added). Nevertheless, we

 2   concluded, “while under normal circumstances the BIA cannot hear late-filed appeals, it may hear

 3   such appeals in unique or extraordinary circumstances.” Zhong Guang Sun, 421 F.3d at 108; see also

 4   id. at 109. And, we held that such extraordinary circumstances justifying relief from the appeal

 5   deadline were presented in Zhong Guang Sun as a result of “a delay in delivery by an express

 6   delivery service, in contrast to a delay in regular mail.” Id. at 110.

 7           In the instant case, however, there is no question that Nwogu failed to file in our court a

 8   timely petition for review of the BIA’s January 24, 2006 timeliness denial. No such petition was

 9   filed until May 10, 2006, one month after the BIA denied Nwogu’s motion for reconsideration and

10   long after the deadline for appealing the January 24th order had passed. As a result, the issue of

11   whether the BIA would be required to consider an application which an incarcerated individual

12   allegedly submitted for mailing eight days before a BIA deadline and which arrived at 9:16am on

13   the morning after the deadline, is not before us. Our review is limited to the BIA’s decision not to

14   reopen or reconsider. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89 (2d Cir. 2001)

15   (holding that “an appeal from a final order of exclusion or deportation and an appeal from a denial

16   of a motion to reopen or reconsider that final order involve[] two separate petitions filed to review

17   two separate final orders” (internal quotations omitted)). We are “‘precluded from passing on the

18   merits of the underlying exclusion proceedings,’” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

19   curiam)(quoting Zhao, 265 F.3d at 90)); see also Stone v. INS, 514 U.S. 386, 405 (1995).

20           Surprisingly, petitioner, now counseled on appeal, does not raise any of the issues relevant

21   to the BIA’s April 10, 2006 denial of Nwogu’s motion for reconsideration of the January 24, 2006

22   decision. We therefore must treat any challenge to the April 10 decision as waived. But that decision


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1   is the only one we are empowered to review.

2

3                                           CONCLUSION

4          For the foregoing reasons, and in the circumstances of this particular case, the petition for

5   review is DENIED.




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1   06-2169-ag

2   Nwogu v. Gonzales

3   W INT ER ,   Circuit Judge, concurring:

4           I concur in the result.

5




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