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


7-17-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2450




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Wang v. Atty Gen USA" (2006). 2006 Decisions. Paper 741.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/741


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 2006 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                                                                    NOT PRECEDENTIAL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: 05-2450

                                       XING GUO WANG

                                                v.

                      ATTORNEY GENERAL OF THE UNITED STATES

                          On Petition for Review of Orders of Removal
                            from the Board of Immigration Appeals
                                     (BIA No: A29-829-847)
                              Immigration Judge: Daniel Meisner

                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                          May 15, 2006

                          Before: McKEE, GARTH, Circuit Judges and
                               LIFLAND,* Senior District Judge.

                                   (Opinion filed: July 17, 2006)



                                            OPINION

McKEE, Circuit Judge.

        Xing Guo Wang asks us to review the Board of Immigration Appeal’s affirmance of the

Immigration Judge’s order denying relief from removal. For the reasons that follow, we will

dismiss the petition for review.


       *
         The Honorable John C. Lifland, Senior District Judge of the United States District
Court for the District of New Jersey, sitting by designation.

                                                 1
        Wang argues that his petition for review should be granted because the BIA

erred in affirming the decision of the Immigration Judge based upon the latter’s improper

reliance upon unsupported and irrelevant credibility determinations as well as errors the IJ

purportedly made in denying Wang’s claim of political persecution and persecution based upon

China’s family planning policies. However, after the BIA affirmed the IJ’s decision, Wang filed

a motion for reconsideration with the BIA rather than filing a petition for review in the

appropriate Court of Appeals. After the BIA denied the motion for reconsideration, Wang

petitioned for review of the order denying reconsideration, but did not file a timely appeal of the

IJ’s underlying order.

        A petition for review must be filed within 30 days after a final order of removal. 8 U.S.C.

§1105(a)(1994). The BIA affirmed the IJ’s denial of relief from removal without opinion on

April 4, 2003. Accordingly, that decision became the final agency determination. 8 C.F.R. §

1003.1(e) (4) (2005). No petition for review was filed from that final order within the required

30 days. Rather, on April 23, 2003, Wang filed a motion for reconsideration of that April 4,

order with the BIA asking the BIA to review the IJ”s adverse credibility determination. The BIA

denied that motion for reconsideration on June 30, 2003 based upon Wang’s failure to identify an

error of fact or law in the IJ’s ruling.

        This petition for review was then filed on July 28, 2003, well after the 30 days required to

appeal the underlying final order. Although Wang filed this petition for review within 30 days

of the BIA’s dismissal of his motion for reconsideration, it is clear that he did not file within 30

days of the “final agency determination;” the underlying order of the BIA denying his appeal of




                                                  2
the IJ’s denial of relief.** “The requisite time for filing a petition for review is jurisdictional, and

a timely motion for reconsideration does not render the underlying final order non-final.” Stone v.

INS, 

, 394-95 (1995). Accordingly, we have no jurisdiction to consider the petition

for review. Accordingly, we will dismiss the petition.




        **
         Wang petitions for the review of a final order of the BIA June 30, 2003 decision.
However, since the underlying final order was entered on April 4, 2003, and no petition for
review was filed within the 30 day requisite time after that underlying final order, Wang has
waived the issues presented in his brief.

                                                   3