Peralta-Tejeda 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this opinion should not be published and is not precedent except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
December 29, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-60902
Summary Calendar
_____________________
FRANCISCO PERALTA-TEJEDA,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
__________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A78-996-367
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Peralta-Tejeda entered the United States on or about
September 25, 1999 as a non-immigrant visitor authorized to remain
until October 10, 1999. He remained in the United States beyond
that date and was also convicted of forgery on July 1, 2002.
Shortly thereafter, on July 18, 2002, he received from the INS a
Notice to Appear listing his violations and alleging that he was
subject to removal on account of each. Peralta-Tejeda admitted the
allegations and conceded that he was subject to removal. However,
he sought asylum and withholding of removal, claiming past

-- 1 of 3 --

persecution and fear of future persecution in Mexico based on the
fact that he is gay. The Immigration Judge rejected the asylum
application for untimeliness -- Peralta-Tejeda admitted that he
failed to seek asylum within one year of entering the United
States. The Immigration Judge also denied the request for
withholding of removal, finding that Peralta-Tejeda had failed to
establish the requisite likelihood of persecution. The Board of
Immigration Appeals summarily affirmed by order dated May 26, 2004.
Peralta-Tejeda filed a motion for reconsideration on June 28, 2004,
which the BIA denied on September 8, 2004. Peralta-Tejeda filed a
petition for review on October 7, 2004.
We do not address the merits of the May 26, 2004 order because
Peralta-Tejeda failed to file his petition for review within the
30-day period set out in 8 U.S.C. 1252(b)(1) (“The petition for
review must be filed not later than 30 days after the date of the
final order of removal.”). Presumably, Peralta-Tejeda expected the
30-day period to run from the September 8, 2004 order denying his
motion for reconsideration. However, the Supreme Court held in
Stone v. INS, 514 U.S. 386 (1995), that the period for filing a
petition for review of a final order of removal, being “mandatory
and jurisdictional,” is to be observed strictly according to its
terms and cannot be equitably tolled by motions for
reconsideration. Amendments to the immigration laws, which, inter
alia, shortened the petition period to 30 days and moved the
provision for judicial review of orders of removal from § 1105 to

-- 2 of 3 --

§ 1252, appear not to have upset the rule in Stone. Thus, as the
government argues, Peralta-Tejeda’s petition for review is untimely
with respect to the BIA’s order of March 26, 2004.
Peralta-Tejeda’s petition is, however, timely with respect to
the BIA’s September 8, 2004 order denying his motion for
reconsideration of the March 26, 2004 order. We review a denial of
a motion for reconsideration “under a highly deferential abuse-of-
discretion standard.” Zhao v. Gonzales, 404 F.3d 295 (5th Cir.
2005).
“A motion to reconsider shall state the reasons for the motion
by specifying the errors of fact or law in the prior Board
decision.” 8 C.F.R. §1003.2(b)(1). Peralta-Tejeda’s motion for
reconsideration asserted that the BIA “did not evaluate the case in
a proper manner.” However, in attempting to elaborate upon this
assertion, Peralta-Tejeda argued nothing more than that “the
Immigration Judge did not consider the cumulative factors involved
in this case. [Peralta-Tejeda] was severely beaten up all because
of his status as a gay person in Mexico. . . . [T]he Board gave
insufficient consideration to the issue of Mr. Peralta’s
persecution.” This is hardly a successful attempt to specify
errors. We cannot say that the BIA abused its discretion in
denying a motion that was based on such a generic complaint.
Accordingly, the petition for review is
DENIED.

-- 3 of 3 --