Marline Thompson-Ward v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 3, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11620
Non-Argument Calendar
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Agency No. A074-928-057
MARLINE THOMPSON-WARD,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 3, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
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Marline Thompson-Ward, a native and citizen of Jamaica, petitions for
review of the Board of Immigration Appeals’ (BIA’s) order denying her motion to
reopen her case. After thorough review, we deny her petition in part and dismiss it
in part.
I. Background
Marline Thompson-Ward was admitted to the United States in July 1989,
with authorization to remain until January 16, 1990. In 1996, the Immigration and
Naturalization Service (INS) denied Thompson-Ward’s first husband’s petition to
obtain a visa on her behalf because it determined that her marriage was a “sham.”
See 8 U.S.C. § 1154(c). Soon after, the INS served her with a notice to appear for
removal proceedings. In 1998, the INS continued these proceedings because it
approved her second husband’s petition to adjust her immigration status. The INS,
however, subsequently revoked this approval, finding that Thompson-Ward was
ineligible for a visa because of the INS’s previous determination that her first
marriage was a sham.
In her removal hearing in 2003, Thompson-Ward argued that she should be
granted relief from removal because of her second marriage. The immigration
judge denied her relief and ordered that she voluntarily depart the United States in
60 days. In 2004, the BIA affirmed this order. Thompson-Ward, however, did not
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leave the country and remarried in 2008. In 2009, she moved the BIA to reopen
her removal proceedings, arguing that the BIA should exercise its sua sponte
power to reopen her case because her previous attorney provided her insufficient
representation. The BIA denied the motion, and Thompson-Ward petitions this
court for review.
II. Analysis
Thompson-Ward argues that the BIA erred in denying her motion to reopen.
In support, she reiterates her argument that she received ineffective assistance of
counsel. She also argues for the first time on appeal that she and her third husband
attended an extensive interview at the Department of Homeland Security and her
“petition was approved.”1
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). A motion to reopen
must be filed no later than 90 days after the final administrative decision in the
proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2); see also Abdi, 430
F.3d at 1150 (holding that the 90-day period is not subject to equitable tolling on
account of ineffective assistance of counsel). In this case, Thompson-Ward filed
her motion to reopen five years after the BIA issued its final decision. Thus, the
The approved petition is not included in the record.1
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BIA did not abuse its discretion in denying Thompson-Ward’s petition as
untimely.
The BIA also has the sua sponte authority to grant an untimely motion to
reopen. 8 C.F.R. § 1003.2(a). We lack jurisdiction, however, to review the BIA’s
refusal to exercise its discretionary sua sponte power to reopen cases. Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). Thus, to the extent that
Thompson-Ward’s appeal can be construed as challenging the BIA’s failure to
exercise its sua sponte power, we lack jurisdiction to address these arguments.
Thompson-Ward’s petition is therefore
DENIED IN PART AND DISMISSED IN PART.
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