Amien v. Ashcroft

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 29, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60798
Summary Calendar
MOSES JAMES AMIEN,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 553 396
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Moses James Amien requests review of the August 28, 2002,
decision rendered by the Board of Immigration Appeals (BIA). The
BIA denied Amien’s motion for reconsideration of its decision
dismissing his appeal as untimely. He argues that the 30-day
appeal period runs from the date that he received the decision of
the Immigration Judge (IJ) on October 17, 2001, and that his notice
of appeal was timely filed on November 15, 2001, within 30 days of
the date he received the decision. He also argues that the
application of 8 C.F.R. § 1003.38(b), the regulation establishing
the 30-day appeal period, violated his equal protection rights.

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No. 02-60798
-2-
Because Amien did not file a petition for review within 30 days of
the BIA’s June 4, 2002, order which dismissed Amien’s appeal as
untimely, we do not have jurisdiction to review the BIA’s June 4,
2002, order. See Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th
Cir. 1993).
Amien filed a petition for review within 30 days of the BIA’s
August 28, 2002, order denying his motion for reconsideration and,
therefore, we have jurisdiction to review that order. See id.
Amien has not shown that the BIA abused its discretion in denying
his motion for reconsideration as untimely. Amien did not comply
with the BIA’s instructions to correct the defects in his filing
within the 30-day appeal period pursuant to 8 C.F.R.
§ 1003.2(b)(2), and he did not file a motion requesting that the
BIA accept his untimely motion by certification. Accordingly,
Amien’s petition for review is DENIED.
PETITION DENIED.

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