Hazahzeh, et al v. Gonzales

* 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this opinion should not be published and is not precedent except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
April 18, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60258
Summary Calendar
RADI HAZAHZEH; NAZMIEH JUMA; HISHAM HAZAHZA; MIRVAT HAZAHZA;
SUSAN HAZAHZA; AHMED HAZAHZA; BASSAM HAZAHZA; MOHAMMAD HAZAHZA,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 219 510
BIA No. A95 219 509
BIA No. A95 219 507
BIA No. A95 219 508
BIA No. A95 219 506
BIA No. A95 219 505
BIA No. A95 219 504
BIA No. A95 219 503
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioners, Radi Hazahzeh, his wife Nazmieh Juma, and their
five children, petition for review of the Board of Immigration
Appeals’ (“BIA”) dismissal as untimely of their appeal from the
Immigration Judge’s (“IJ”) order of removal of Petitioners to
Jordan or, alternatively, the Occupied Territories and of the

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No. 04-60258
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denial of asylum, withholding of removal, and protection under
the Convention Against Torture.
Petitioners argue that their appeal was timely because the
BIA received their notice of appeal timely, the filing fee was
paid before any deficiency notice from the Board, and the filing
fee is not a jurisdictional requirement. The BIA’s
interpretation of the regulations, that both the notice of appeal
and the filing fee must be filed within 30 days of the IJ’s
decision for the appeal to be timely, flows rationally from the
language of the regulations. See 8 C.F.R. §§ 3.3(a)(1)-(3),
3.8(a) & (c), 3.38(d), § 240.15 (2003). Accordingly, that
interpretation is entitled to due deference. See Navarro-Miranda
v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003). The notice of
appeal was received by the filing deadline, but because
Petitioners did not pay the filing fee until after the expiration
of the 30-day period, the BIA did not err in dismissing the
appeal as untimely. The Eighth Circuit’s decision in Naderpour
v. INS, 52 F.3d 731 (8th Cir. 1995), which addressed regulations
different from those applicable to Petitioners’ case, is neither
persuasive nor precedential.
Petitioners assert that “counsel’s failure to file a timely
appeal constituted sufficient prejudice to warrant consideration
of the late appeal on the basis of ineffective assistance of
counsel because the meritorious nature of the appeal is clear as
set forth herein.” Petitioners do not cite any authority for the

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No. 04-60258
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BIA to construe their untimely appeal as a motion to reopen.
Even if the BIA had the authority to so construe the appeal,
Petitioners merely asserted ineffective assistance and did not
submit any evidence and made no attempt to meet any of the
requirements for a motion to reopen an untimely appeal based on
counsel’s ineffectiveness. See In re Lozada, 19 I & N Dec. 637,
639-40 (BIA 1988).
PETITION FOR REVIEW DENIED.

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