Filed: Jun. 25, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-25-2008 Yousef v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1838 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Yousef v. Atty Gen USA" (2008). 2008 Decisions. Paper 982. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/982 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-25-2008 Yousef v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-1838 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Yousef v. Atty Gen USA" (2008). 2008 Decisions. Paper 982. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/982 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-25-2008
Yousef v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1838
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Yousef v. Atty Gen USA" (2008). 2008 Decisions. Paper 982.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/982
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1838
EMAN YOUSEF,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A47-148-032)
Immigration Judge: Honorable Henry S. Dogin
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2008
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed June 25, 2008)
OPINION
PER CURIAM
Eman Yousef, a native and citizen of Libya and former resident of Egypt, petitions
for review of a final order of the Board of Immigration Appeals (“BIA”). For the
following reasons, we will deny in part and dismiss in part the petition for review.
I.
Yousef entered the United States on July 2, 2001, as a conditional legal permanent
resident (“LPR”). She received this status due to her 2001 marriage to Medat Ali, a
United States citizen. Yousef and Ali began having marital problems soon after Yousef
arrived in the United States, and in July 2002 she moved out of their home. In September
2002, Ali submitted an affidavit to the Immigration and Naturalization Services stating
that Yousef told him during an argument that she only married him for a “green card.”
Yousef and Ali divorced in February 2003,1 and in April 2003, Yousef applied to remove
the conditions to her LPR status. The U.S. Citizenship and Immigration Services
(“USCIS”) denied the application on February 3, 2005, after finding that Yousef failed to
establish that she entered into her marriage to Ali in good faith.
After obtaining counsel (Yasser Helal), Yousef sought review of the USCIS’s
decision at her October 14, 2005 removal proceeding. The Immigration Judge (“IJ”)
found that Yousef was not credible, ordered her removed, and denied her request for
voluntary departure. Additionally, the IJ told Yousef and Helal that to appeal the removal
decision they “must file the appeal on appropriate forms . . . to the Board of Immigration
Appeals [“BIA”], Falls Church, Virginia by November 14, 2005.”
Helal, however, mailed the notice of appeal to the Immigration Court rather than to
the BIA. And on November 17, 2005, the Immigration Court returned the notice of
1
Yousef remarried in December 2003 (to a non-citizen) and had her first child in
late 2004.
2
appeal to Helal and instructed him to immediately send the documents to the BIA. The
notification also cautioned that “[w]e cannot guarantee that extra time will be allowed to
[you] simply because you made a mistake and sent your papers here.” Helal then
forwarded the notice of appeal to the BIA, where it arrived on November 23rd—nine
days late. That same day, Helal also filed a motion to reopen the removal proceeding,
asserting that the appeal’s untimeliness should be excused because it was caused by a
clerical error. On March 6, 2007, the BIA dismissed the appeal as untimely and declined
to exercise its discretion to sua sponte reopen the proceedings, finding that a clerical error
was not an exception to the 30-day statute of limitation.
We received Yousef’s petition for review and motion for a stay of removal on
March 21, 2007. We denied Yousef’s motion for a stay of removal, and directed the
parties to brief the issue of whether, due to the apparent untimeliness of Yousef’s appeal
to the BIA, we have jurisdiction to review the IJ’s October 14, 2005 decision.
II.
For this Court to have jurisdiction to review a final administrative removal order,
the petitioner must “exhaust all administrative remedies available to [her] as of right.” 8
U.S.C. § 1252(d). We have held that “an alien’s failure timely to appeal to the BIA . . .
constitutes a failure to exhaust administrative remedies.” Bejar v. Ashcroft, 324 F.3d
127, 132 (3d Cir. 2004). Here, Yousef was informed that she had until November 14,
2005, to file an appeal from the IJ’s October 14, 2005 order of removal. See 8 C.F.R.
§ 1003.38(b). However, although the IJ specifically told Yousef and her attorney that
3
they had to appeal to the BIA, they sent the appeal to the Immigration Court, and the
appeal was not filed with the BIA until November 23, 2005. The notice of appeal to the
BIA was thus untimely. See 8 C.F.R. § 1003.38(b). Yousef has failed to exhaust her
administrative remedies, and we lack the power to review the IJ’s decision, see Bejar, 324
F.3d at 132.
III.
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. §
1252(a)(1), and review a BIA’s denial of a motion to reopen for abuse of discretion. Liu
v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). In her brief to this Court, Yousef focuses
solely on the IJ’s opinion. She does not challenge the BIA’s decision to dismiss her
appeal as untimely or its decision to deny her motion to reopen. She has therefore waived
her only viable issues on appeal.2 See Emerson v. Thiel College,
296 F.3d 184, 190 n.5
(3d Cir. 2002) (“Failure to set forth an issue in an appellate brief waives that issue on
appeal.”).
We nevertheless note that the BIA did not abuse its discretion in denying Yousef’s
motion to reopen, or in declining to excuse the appeal’s untimeliness. For example,
although it is unfortunate that a mistaken mailing would have such drastic consequences,
2
As the government argues, to the extent that Yousef’s brief could be read to
challenge the BIA’s refusal to sua sponte reopen the proceedings, we are without
jurisdiction to entertain that challenge. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475
(3d Cir. 2003) (“Because the BIA retained unfettered discretion to decline to sua sponte
reopen or reconsider a deportation proceeding, this Court is without jurisdiction to review
a decision declining to exercise such discretion.”).
4
this is not the type of case that allows the BIA to excuse the 30-day statute of limitation.
See BIA Practice Manual § 3(b)(iv) (“Delays caused by incorrect postage or mailing error
by the sending party do not affect existing deadlines.”); Holder v. Gonzales, 499 F.3d
825, 828-29 (8th Cir. 2007) (finding that the BIA did not abuse its discretion by
dismissing appeal delivered one day late).
For these reasons, we will deny Yousef’s petition for review.
5
