Balane v. Gonzales, (10th Cir. 2005)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EMMANUEL LAYLO BALANE and

PRYMROSE MORALES BALANE,

Petitioners,

v.

ALBERTO R. GONZALES,(*) Attorney

General,

Respondent.

No. 04-9596

(BIA Nos. A78-354-380

& A78-354-381)

(Board of Immigration Appeals)

ORDER AND JUDGMENT(2)

Before EBEL, McKAY, and HENRY,

Circuit Judges.

After examining the briefs and appellate record, this panel has

determined

unanimously to honor the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

Petitioners are aliens from the Philippines. After being informed of the

institution of removal proceedings against them, they applied for a cancellation

of removal. On March 13, 2003, the immigration law judge denied their

application. Petitioners appealed that decision to the Board of Immigration

Appeals (Board). On April 27, 2004, the Board summarily affirmed the

immigration law judge's decision. Thereafter, on August 5, 2004, Petitioners

filed a motion with the Board to reconsider its summary affirmance. The Board

denied Petitioners' motion because it was untimely. Petitioners now appeal the

Board's denial of that motion.(1)

We review the Board's denial of a motion to reconsider for an abuse of

discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003).

The Board "abuses its discretion when its decision provides no rational

explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements." Infanzon v.

Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (internal quotation marks and

citation omitted).

There is nothing in this case indicating that the Board abused its discretion

when it denied Petitioner's motion to reconsider. In its order, the Board

explained, "the motion to reconsider was filed out of time." A.R. at 3. The order

outlined the time schedule that Petitioners had for filing such a motion.

Petitioners had thirty days to file a motion for reconsideration after the Board's

order was entered on April 27, 2004. Petitioners did not file their motion until

August 5, 2004.(2)

Based on our review of the relevant law and facts surrounding this issue,

we hold that the Board did not abuse its discretion when it denied Petitioners'

motion to reconsider.

Accordingly, the Board's decision is AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. On February 4, 2005, Alberto R. Gonzales

became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of

Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the

Respondent in this action.

2. **This order and judgment is

not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1.Petitioners' argument on appeal goes to the

merits of their original

cancellation of removal. However, we will not consider that argument because

our jurisdiction is limited to review of the Board's denial of Petitioners' motion

to reconsider. See 8 U.S.C. 1252(b)(1) (2000); Stone v. INS,

514 U.S. 386,

395, 405-06 (1995).

2.The Board acknowledged its error "in

forwarding its July 12, 2004

rejection notice to the wrong address." A.R. at 3. However, this is not relevant

to our holding because, even if we were to recognize Petitioners' first filing as

valid, it was nonetheless untimely when it was sent on July 7, 2004.

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