Belay-Gebru v. I.N.S., No. 02-9509.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtTacha
Citation327 F.3d 998
PartiesTsegaw BELAY-GEBRU, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Decision Date26 March 2003
Docket NumberNo. 02-9509.,No. 02-9518.
327 F.3d 998
Tsegaw BELAY-GEBRU, Petitioner,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 02-9509.
No. 02-9518.
United States Court of Appeals, Tenth Circuit.
March 26, 2003.

Page 999

Submitted on the briefs: Mekre-Michael Ayele, Arlington, VA, on the brief for Petitioner.

Alison R. Drucker, Senior Litigation Counsel, and Margaret K. Taylor, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC, on the brief for Respondent.

Before TACHA, Chief Circuit Judge, SEYMOUR and EBEL, Circuit Judges.

TACHA, Chief Circuit Judge.


After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

I. Background

On January 29, 2001, the Board of Immigration Appeals ("BIA") denied Mr. Belay-Gebru's appeal from an immigration judge's order denying asylum and withholding of deportation. Mr. Belay-Gebru did not petition this court for review of the BIA's January 29, 2001, decision. Instead, Mr. Belay-Gebru filed an initial motion to reconsider with the BIA on March 2, 2001, which the BIA dismissed as time-barred on April 19, 2001. Mr. Belay-Gebru subsequently filed a second motion to reconsider,1 requesting that the BIA exercise its discretion to reopen and reconsider his case, pursuant to 8 C.F.R. § 1003.2(a). The BIA denied this request on May 17, 2001. This appeal followed.2

Page 1000

II. Discussion

We must first consider our jurisdiction to decide Mr. Belay-Gebru's appeal. Our jurisdictional inquiry in this case is governed by 8 U.S.C. § 1105a.3 Insofar as Mr. Belay-Gebru challenges (1) the BIA's denial of his appeal from the immigration judge's deportation order and (2) the BIA's denial of Mr. Belay-Gebru's initial motion to reconsider, we do not have jurisdiction to consider these claims because Mr. Belay-Gebru did not file a timely petition for review with this court. See Stone v. I.N.S., 514 U.S. 386, 406, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (holding that the courts of appeal lack jurisdiction to review an untimely petition for review); see also Saadi v. I.N.S., 912 F.2d 428, 428 (10th Cir.1990) (holding that the requirements of 8 U.S.C. § 1105a are mandatory and jurisdictional).

Under the transitional rules,4 a petition for review of a final order of exclusion or deportation must be filed with the court of appeals not later than thirty days after issuance of the final order. See Pub.L. No. 104-208, 110 Stat. 3009, § 309(c)(4)(A)(D). Here, the BIA denied Mr. Belay-Gebru's appeal from the immigration judge's order on January 29, 2001. The thirty-day period for review began running on that date. See 8 C.F.R. § 1241.31 (order of deportation "become[s] final upon dismissal of an appeal by the [BIA]"). Mr. Belay-Gebru filed his petition for review with this court on February 22, 2002, well outside the thirty-day window. Regarding the BIA's denial of Mr. Belay-Gebru's initial motion to reconsider, the thirty-day period began running on April 19, 2001. Again, Mr. Belay-Gebru's present petition for review, filed with this...

To continue reading

Request your trial
49 practice notes
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, 303 F.3d at 1159; Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). The only two cases that cite a statute in concluding that such ......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We now reach the same The statute governing motions to reopen spe......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...at 410-11; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). The only two cases that cite a statute in concluding that such de......
  • Mendiola v. Holder, No. 12-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 22, 2014
    ...under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency's exercise of discretion."); Belay-Gebru v. INS, 327 F.3d 998, 1001 (10th Cir. 2003) ("Because we have no meaningful standard against which to judge the BIA's exercise of its discretion, we hold that we d......
  • Request a trial to view additional results
49 cases
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 18, 2010
    ...379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Ekimian, 303 F.3d at 1159; Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). The only two cases that cite a statute in concluding that such ......
  • Tamenut v. Mukasey, No. 05-4418.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 2008
    ...Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We now reach the same The statute governing motions to reopen spe......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 4, 2010
    ...at 410-11; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). The only two cases that cite a statute in concluding that such de......
  • Mendiola v. Holder, No. 12-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 22, 2014
    ...under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency's exercise of discretion."); Belay-Gebru v. INS, 327 F.3d 998, 1001 (10th Cir. 2003) ("Because we have no meaningful standard against which to judge the BIA's exercise of its discretion, we hold that we d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT