Rizwan v. Gonzales
171 F. App'x 457
March 17, 2006 · Docket 04-61051
Headnotes
Generated summaries- Headnote 1
The deadline runs independently of any pending reconsideration request; a petition filed after the period remains untimely even if a motion to reconsider is pending.
- Headnote 2
Because the statutory time limit is jurisdictional, an untimely petition deprives the court of authority to hear the case, resulting in dismissal.
- Headnote 3
The BIA’s decision remains final despite a pending motion to reconsider; the statutory time limit proceeds unaffected.
- Headnote 4
Because the petition was filed after the deadline, the appellate court had no authority to hear the case and dismissed it as beyond its jurisdiction.
- Headnote 5
The statute’s filing period runs irrespective of pending reconsideration proceedings; the deadline remains fixed even while a motion to reconsider is pending.
- Headnote 6
Because Rizwan filed his petition after the statutory deadline, the Fifth Circuit lacks jurisdiction to hear the case and must dismiss the untimely petition.
- Headnote 7
The court held that the motion to reconsider filed on September 17, 2004 did not change the finality of the BIA’s decision and therefore did not pause the filing period, applying the principle from Stone v. INS.
- Headnote 8
Because Rizwan’s petition was filed after the statutory deadline, the court concluded it had no jurisdiction to hear the case, following the jurisdictional rule articulated in Stone v. INS.
- Headnote 9
The opinion explained that Rizwan’s September 17, 2004 motion to reconsider did not change the finality of the BIA’s decision and cited Supreme Court precedent that pending reconsideration motions do not suspend procedural time limits.
- Headnote 10
Because Rizwan’s petition was filed on November 19, 2004—well beyond the deadline—the court concluded it lacked jurisdiction to hear the case, relying on case law that treats the statutory time limit as a jurisdictional bar.
- Headnote 11
The BIA’s August 18, 2004 affirmation of the immigration judge’s denial of Rizwan’s motion to reopen made his removal order final, thereby starting the statutory 30‑day review clock.
- Headnote 12
Rizwan’s September 17, 2004 motion to reconsider did not change the filing deadline; the court relied on Supreme Court precedent that procedural motions do not suspend statutory review periods.
- Headnote 13
Because Rizwan’s petition was filed after the statutory deadline, the Fifth Circuit held it lacked jurisdiction to review the BIA decision, echoing Supreme Court authority that time limits for judicial review are jurisdictional.
- Headnote 14
Rizwan filed his petition on November 19, 2004, well beyond the September 17, 2004 deadline, and the court dismissed the petition as untimely.
Opinion
In 2001, Sadruddin Rizwan, a native and citizen of Pakistan, attempted to enter the United States using a passport belonging to another individual. The former Immigration and Naturalization Service commenced removal proceedings by filing a Notice to Appear before an immigration court. Rizwan failed to appear at his February 2002 scheduled hearing. Accordingly, the immigration judge (“IJ”) ordered Rizwan removed under 8 U.S.C. § 1229a(b)(5)(A) (2000). Rizwan filed a motion to reopen with the immigration court pursuant to § 1229(b)(5)(C)(i), and the IJ denied the motion.
In June 2003, Rizwan filed a Notice of Appeal with the Board of Immigration Appeals (“BIA”). On August 18, 2004, the BIA affirmed, without opinion, the IJ’s decision denying Rizwan’s motion to reopen. On September 17, 2004, Rizwan filed a motion to reconsider with the BIA. The BIA denied the motion on October 21, 2004. Rizwan now petitions for review of the BIA’s decision affirming the IJ’s denial of his motion to reopen.
Rizwan’s petition for review is untimely. Section 1252(b)(1) requires that a petition for review “be filed not later than 30 days after the date of the final order of removal.” Rizwan’s order of removal became final when the BIA affirmed the IJ’s denial of his motion to reopen on August 18, 2004. Rizwan filed his petition for review on November 19, 2004, well past the September 17, 2004 deadline. In addition, the motion for reconsideration Rizwan filed with the BIA did not affect the finality of BIA’s decision affirming the IJ’s denial of Rizwan’s motion to reopen. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Therefore, this Court is without jurisdiction to consider Rizwan’s untimely petition for review. See id. at 405, 115 S.Ct. 1537 (explaining that judicial review provisions are jurisdictional in nature).
DISMISSED.
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.