Martinez-Andrade v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 06, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10587
Non-Argument Calendar
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Agency No. A070-926-476
ESTHER GUADALUPE MARTINEZ-ANDRADE,
a.k.a. Esther Guadalupe Mertinez-Andrade,
lllllllllllllllllllll Petitioner,
versus
U. S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 6, 2010)
Before EDMONDSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Esther Guadalupe Martinez-Andrade, proceeding pro se, seeks review of the
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Board of Immigration Appeals’ (“BIA”) decision denying her motion to reconsider
an order affirming the denial of her application for cancellation of removal under §
240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). On
appeal, Martinez-Andrade argues that the BIA abused its discretion in denying her
untimely motion, because the BIA, in its Practice Manual, has encouraged aliens and
those representing them to use overnight delivery services to ensure prompt delivery
of pleadings, and the agency should have excused her untimeliness in this instance.
After thorough review, we deny the petition.
The BIA’s denial of a motion to reconsider is reviewed for abuse of discretion.
Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). Review “is limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). An alien may file one motion to
reconsider an order of removal, but it must be filed within 30 days of the final
administrative order, and the motion “shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.” 8 U.S.C. §
1229a(c)(6); 8 C.F.R. § 1003.2(b).
“The BIA’s interpretation of immigration statutes are due Chevron deference
where appropriate.” Chen v. U.S. Att’y Gen., 565 F.3d 805, 809 (11th Cir. 2009)
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(noting that “[t]he degree of deference is especially great in the field of
immigration”). “Under Chevron, where Congress in a statute has not spoken
unambiguously on an issue, the interpretation of the statute by an agency entitled to
administer it is entitled to deference so long as it is reasonable.” Id. Chevron
deference is appropriate in cases involving precedential three-member decisions of
the BIA or where a single-member BIA decision relies on existing BIA or federal
court precedent. Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008).
The BIA does not deem a motion filed until it is received by the agency, as it
does not recognize the “mailbox rule.” Matter of Liadov, 23 I. & N. Dec. 990, 992
(2006). The BIA has recognized that its Practice Manual encourages parties to use
overnight delivery services to ensure timely filing, and that it leaves open the
possibility that delivery delays could, in “rare circumstances,” excuse untimely
filings. Id. (citing Practice Manual, § 3.1(b)(iv), at 34). However, the BIA has noted
that the Practice Manual “strongly recommends that parties file as far in advance of
the deadline as possible,” and that it specifically cautions them that use of an
overnight delivery service does not mean that failing to meet filing deadlines will be
excused. Id. Consequently, “although a delivery delay might excuse untimeliness in
a rare case, such as where the delivery was very late or caused by ‘rare’
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circumstances, the Practice Manual makes clear that, in general, such delays do not
affect deadlines.” Id.
Here, Martinez-Andrade provided no evidence that the delay in the filing of her
motion to reconsider was a “rare” circumstance warranting excuse of its untimeliness.
Martinez-Andrade’s repeated failure to comply with the BIA’s filing deadlines based
on her attorneys’ deficiencies supports the BIA’s finding that the delay of the filing
of the instant motion was not a “rare” circumstance. As a result, the BIA did not
abuse its discretion by denying her untimely motion on this basis. Id. Moreover,
although not reached by the BIA, her motion nevertheless failed to satisfy the
statutory requirements, as it failed to “specify the errors of law or fact in the previous
order.” 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). Accordingly, the BIA did not
abuse its discretion by denying her untimely motion on this basis, and we deny her
petition.
DENIED.
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