Mahamat v. Ashcroft, 430 F.3d 1281 (10th Cir. 2005). · Go Syfert
Mahamat v. Ashcroft, 430 F.3d 1281 (10th Cir. 2005). Cases Citing This Book View Copy Cite
“the issue of equitable tolling must be exhausted through the bia in order for this court to reach this issue.”
80 citation events (80 in the last 25 years) across 7 distinct courts.
Strongest positive: Leon-Molina v. Garland (ca10, 2024-09-03)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Leon-Molina v. Garland (2×) also: Cited as authority (rule)
10th Cir. · 2024 · quote attribution · 1 verbatim quote · confidence high
the issue of equitable tolling must be exhausted through the bia in order for this court to reach this issue.
discussed Cited as authority (rule) Abdulmalik Abdulla v. Attorney General United States
3rd Cir. · 2025 · confidence medium
See Idrees v. Barr, 923 F.3d 539, 543 (9th Cir. 2019) (“Because we do not have jurisdiction to review the IJ and BIA’s decision not to certify [the petitioner’s] . . . claim, we dismiss his appeal of the failure to certify.”); Vela-Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016) (per curiam) (same); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir. 2008) (concluding that “the BIA’s refusal to self-certify was an unreviewable action committed to the agency’s discretion”); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (holding that “insofar as [the petitioner] argue…
cited Cited as authority (rule) Hernandez-Gamon v. Garland
10th Cir. · 2024 · confidence medium
“The issue of equitable tolling must be exhausted through the BIA in order for this court to reach the issue.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
discussed Cited as authority (rule) Cervantes-Soberano v. Garland (2×) also: Cited "see"
10th Cir. · 2022 · confidence medium
For 5 Appellate Case: 21-9540 Document: 010110749689 Date Filed: 10/06/2022 Page: 6 equitable tolling to apply, “an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation marks omitted); see also Berdiev v. Garland, 13 F.4th 1125 , 1132 (10th Cir. 2021) (observing that an alien “bears the burden of persuasion to show that equ…
discussed Cited as authority (rule) Boch-Saban v. Garland
5th Cir. · 2022 · confidence medium
See Abdulla v. Att’y Gen. of United States, 971 F.3d 409, 414 (3d Cir. 2020); Idrees v. Barr, 923 F.3d 539, 540 (9th Cir. 2019); Vela-Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir. 2008). 4 Case: 20-60540 Document: 00516273872 Page: 5 Date Filed: 04/08/2022 No. 20-60540 license to extend the time for filing a notice of appeal.
discussed Cited as authority (rule) Casco Ayala v. Garland
10th Cir. · 2021 · confidence medium
Thus, we will only reverse the BIA if it “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation marks omitted).
discussed Cited as authority (rule) Molina Dominguez v. Garland
10th Cir. · 2021 · confidence medium
Under 8 C.F.R. § 1003.1 (c) (2019), the BIA has discretion to review an appeal “by certification without regard to the [notice] provisions . . . if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case.”1 In this limited circumstance, the BIA can “avoid[] an untimeliness problem by dismissing an untimely appeal and accepting the case on certification.” Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (quoting Shamsi v. INS, 998 F.2d 761 , 762 n.2 (9th Cir. 1993)).
discussed Cited as authority (rule) Olivas-Melendez v. Barr (2×) also: Cited "see, e.g."
10th Cir. · 2021 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
cited Cited as authority (rule) Zarza-Escamilla v. Barr
10th Cir. · 2020 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
discussed Cited as authority (rule) Abdulmalik Abdulla v. Attorney General United States
3rd Cir. · 2020 · confidence medium
See Idrees v. Barr, 923 F.3d 539, 543 (9th Cir. 2019) (“Because we do not have jurisdiction to review the IJ and BIA’s decision not to certify [the petitioner’s] . . . claim, we dismiss his appeal of the failure to certify.”); Vela-Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016) (same); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir. 2008) (concluding that “the BIA’s refusal to self-certify was an unreviewable action committed to the agency’s discretion”); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (holding that “insofar as [the petitioner] argues that the BI…
discussed Cited as authority (rule) Esteban-Marcos v. Barr
10th Cir. · 2020 · confidence medium
A. Equitable Tolling Due to Ineffective Assistance Ineffective assistance of counsel may equitably toll the period for filing a motion to reopen if a non-citizen “demonstrate[s] not only that [her] constitutional right to due process has been violated by the conduct of counsel, but that [she] has exercised due diligence in pursuing the case during the period [she] seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation marks omitted).
discussed Cited as authority (rule) Reyes-Vargas v. Barr
10th Cir. · 2020 · confidence medium
But “[t]he issue of equitable tolling must be exhausted through the [Board] in order for this court to reach the issue.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (citations omitted); see also 8 U.S.C. § 1252 (d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . .”).
discussed Cited as authority (rule) Portillo Martinez v. Barr
10th Cir. · 2020 · confidence medium
The BIA abuses its discretion when its order contains legal error, “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (quotation marks omitted).
discussed Cited as authority (rule) Asif Idrees v. William P. Barr
9th Cir. · 2019 · confidence medium
Vela- Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016) (“In light of the lack of meaningful guidance on how the BIA’s discretion should be applied . . . [we] conclude that the decision not to certify an untimely appeal is committed to agency discretion by law.”); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir. 2008) (“[T]he BIA’s refusal to self- certify [is] an unreviewable action committed to the agency’s discretion.”); Mahamat v. Gonzalez, 430 F.3d 1281, 1284 (10th Cir. 2005) (holding that, because the regulation lacks judicially manageable standards for judging the agency’…
discussed Cited as authority (rule) Soriano-Mendosa v. Sessions (2×) also: Cited "see"
10th Cir. · 2019 · confidence medium
While ineffective assistance of counsel may toll the filing period for a motion to reopen, Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002), Soriano must show that he exercised due diligence in pursuing his case during the period he seeks to toll, Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005). 3 A motion to reopen for rescission of an in abstentia removal order may be filed at any time if the alien shows either that (1) he “did not receive notice in accordance with [ 8 U.S.C. § 1229 (a)(1) or (2)]”; or (2) he “was in Federal or State custody and the failure to appear was t…
discussed Cited as authority (rule) Asif Idrees v. Matthew Whitaker
9th Cir. · 2018 · confidence medium
Vela- Estrada v. Lynch, 817 F.3d 69, 71 (2d Cir. 2016) (“In light of the lack of meaningful guidance on how the BIA’s discretion should be applied . . . [we] conclude that the decision not to certify an untimely appeal is committed to agency discretion by law.”); Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir. 2008) (“[T]he BIA’s refusal to self- certify [is] an unreviewable action committed to the agency’s discretion.”); Mahamat v. Gonzalez, 430 F.3d 1281, 1284 (10th Cir. 2005) (holding that, because the regulation lacks judicially manageable standards for judging the agency’…
discussed Cited as authority (rule) Antonio v. Lynch
10th Cir. · 2016 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (“[T]o receive the benefit of equitable tolling, an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.”) (quotation marks omitted).
cited Cited as authority (rule) Lin Yan v. Lynch
10th Cir. · 2016 · confidence medium
Mahamat *735 v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
discussed Cited as authority (rule) Vela-Estrada v. Lynch
2d Cir. · 2016 · confidence medium
See Liadov v. Mukasey, 518 F.3d 1003, 1010 (8th Cir. 2008) (certification decision committed to agency discretion by law due to ʺ(1) the total absence of statutory standards, (2) the absence of meaningful guidance for applying the ʹexceptional circumstancesʹ standard in the regulation . . . and (3) the absence of a ʹsettled course of adjudicationʹ that could establish a meaningful standardʺ (quoting Tamenut v. Mukasey, 521 F.3d 1000 , 1004‐05 (8th ‐ 6 ‐ Cir. 2008)); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (certification decision ʺbeyond reviewʺ because of lack o…
discussed Cited as authority (rule) Vela-Estrada v. Lynch
2d Cir. · 2016 · confidence medium
See Liadov v. Mukasey , 518 F.3d 1003, 1010 (8th Cir.2008) (certification decision committed to agency discretion by law due to “(1) the total absence of statutory standards, (2) the absence of meaningful guidance for applying the ‘exceptional circumstances’ standard-in the regulation ... and (3) the absence of a ‘settled course of adjudication’ that could establish a meaningful standard” (quoting Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir.2008))); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005) (certification decision “beyond review” because of lack of “sta…
discussed Cited as authority (rule) Ballad v. Lynch (2×) also: Cited "see"
10th Cir. · 2016 · confidence medium
Second, to the extent Ballad is seeking equitable tolling, see Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (requiring ineffective assistance of counsel and due diligence in pursuing relief), Ballad did not present such a claim to *850 the BIA.
discussed Cited as authority (rule) Suarez-Sanchez v. Lynch
10th Cir. · 2016 · confidence medium
Mr. Suarez-Sanchez argues the BIA should have equitably tolled the time limit and granted his motion. “[T]o receive the benefit of equitable tolling, an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during *759 the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (ellipsis and internal quotation marks omitted).
cited Cited as authority (rule) Macias v. Holder
10th Cir. · 2015 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
cited Cited as authority (rule) Maatougui v. Holder
10th Cir. · 2013 · confidence medium
The three cases cited by the BIA were Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005), Infanzon, 386 F.3d at 1362-63 , and Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir.2002). 9 .
cited Cited as authority (rule) Gurung v. Holder
10th Cir. · 2012 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
cited Cited as authority (rule) Jobira v. Holder
10th Cir. · 2012 · confidence medium
Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
discussed Cited as authority (rule) Bakanovas v. Holder, Jr.
10th Cir. · 2011 · confidence medium
For equitable tolling to be available, however, “an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (internal quotation marks omitted).
cited Cited as authority (rule) Illescas-Pinos v. Holder
5th Cir. · 2009 · confidence medium
See also Joumaa v. Gonzales, 446 F.3d 244, 246 (1st Cir.2006); Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
discussed Cited as authority (rule) Talamantes-Rojo v. Holder, Jr.
10th Cir. · 2009 · confidence medium
But because we cannot review the BIA’s decision not to certify the untimely appeal in the first instance, Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005), we also cannot review the BIA’s decision denying reconsideration of that determination, Infanzon, 386 F.3d at 1362 (“[Wjhere judicial review of the underlying order is precluded!]] ■ ■ • denial of a subsequent motion to reopen [or reconsider is] also pi*eeluded.”).
discussed Cited as authority (rule) Gong Ping Chen v. Holder
2d Cir. · 2009 · confidence medium
Cf. Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir.2008) (finding that “the BIA’s refusal to self-certify was an unreviewable action committed to the agency’s discretion”); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005) (same).
discussed Cited as authority (rule) Gong Ping Chen v. Holder
2d Cir. · 2009 · confidence medium
Cf. Liadov v. Mukasey, 518 F.3d 1003, 1011 (8th Cir.2008) (finding that “the BIA’s refusal to self-certify was an unreviewable action committed to the agency’s discretion”); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005) (same).
cited Cited as authority (rule) Widyawati Delariva v. Michael Mukasey
10th Cir. · 2009 · confidence medium
"The decision to grant or deny a motion to reopen proceedings is within the BIA's discretion." Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (citing 8 C.F.R. § 1003.2 (a)).
discussed Cited as authority (rule) Gjinal v. Mukasey
2d Cir. · 2008 · confidence medium
However, reviewing the BIA’s denial of the motion to reconsider would require us to evaluate the BIA’s underlying determination that Petitioners’ lack of due diligence in pursuing them appeal mitigated against taking them appeal on certification, a determination that was “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006) (finding that the BIA’s determination regarding exercise of its sua sponte authority to consider an untimely motion to reopen or reconsider was unreviewable because it is “entirely discretionary”); see also Liadov v. Mukase…
discussed Cited as authority (rule) Camberos v. Mukasey
10th Cir. · 2008 · confidence medium
We review the matter for an abuse of discretion, id. at 1362 , and “will reverse only if the BIA’s ‘decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.’ ” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (quoting Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002)).
discussed Cited as authority (rule) Anakotta v. Gonzales
10th Cir. · 2008 · confidence medium
“We will reverse *779 only if the BIA’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat, 430 F.3d at 1283 (quotation omitted) (reviewing motion to reopen). 2 As mentioned above, petitioner had thirty days from November 2, 2005, in which to file his notice of appeal.
discussed Cited as authority (rule) Mera-Panduro v. Mukasey
10th Cir. · 2008 · confidence medium
Our review of the BIA’s decision is for abuse of discretion, Galvez Pineda v. Gonzales, 427 F.3d 833 , 838 (10th Cir.2005), and “[w]e will reverse only if the BIA’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (internal quotation marks omitted).
discussed Cited as authority (rule) Zhong Guang Sun v. Mukasey
2d Cir. · 2008 · confidence medium
We may well lack jurisdiction to review the BIA’s discretionary decision not to hear his asylum appeal by certification, see Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Ma-hamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005), but in order to decide this petition, we nonetheless assume, without deciding, that we have jurisdiction to review the BIA’s decision with respect to all of Sun’s claims.
discussed Cited as authority (rule) Liadov v. Mukasey (2×) also: Cited "see, e.g."
8th Cir. · 2008 · confidence medium
I conclude that the BIA's decision whether to assert jurisdiction by certification pursuant to 8 C.F.R. § 1003.1 (c) is committed to agency discretion by law, because there is "no law to apply." See Heckler v. Chaney, 470 U.S. 821, 830 , 105 S.Ct. 1649 , 84 L.Ed.2d 714 (1985); Tamenut v. Mukasey, ___ F.3d ___, No. 05-4418, 2008 WL 637617 , slip op. at 8 (8th Cir. Mar. 11, 2008) (en banc) (per curiam); *1013 see also Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005); Saldana-German v. Ashcroft, 116 Fed.Appx. 927 (9th Cir.2004).
discussed Cited as authority (rule) Balane v. Gonzales
10th Cir. · 2008 · confidence medium
“We will reverse only if the BIA’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (quotation omitted). *803 1.
discussed Cited as authority (rule) Yuan Gao v. Mukasey
7th Cir. · 2008 · confidence medium
Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir.2006); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.2005); see, e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999-1000 (9th Cir. 2007); Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir.2007); Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
discussed Cited as authority (rule) Gao, Yuan v. Mukasey, Michael B.
7th Cir. · 2008 · confidence medium
Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005); see, e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999-1000 (9th Cir. 2007); Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007); Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
discussed Cited as authority (rule) Pohan v. Gonzales
10th Cir. · 2008 · confidence medium
“We will reverse only if the BIA’s decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (internal quotation marks omitted).
discussed Cited as authority (rule) Luntungan v. Gonzales
10th Cir. · 2007 · confidence medium
Id. at 1362 . ‘We will reverse only if the BIA’s ‘decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.’ ” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (quot *817 ing Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002)).
discussed Cited as authority (rule) Gbogbo v. Gonzales (2×)
10th Cir. · 2006 · confidence medium
“A motion to reopen ‘must be filed no later than 90 days after the date on which the final administrative decision was rendered.’ ” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005) (quoting 8 C.F.R. § 1003.2 (c)(2)).
cited Cited "see" Ramos v. Barr
10th Cir. · 2020 · signal: see · confidence high
See 8 U.S.C. § 1229b(d)(1). 4 v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
cited Cited "see" Yero v. Gonzales
10th Cir. · 2007 · signal: see · confidence high
See Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.2005).
cited Cited "see" Yero v. Gonzales
10th Cir. · 2007 · signal: see · confidence high
See M ahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005).
discussed Cited "see" Moreno v. Gonzales
10th Cir. · 2006 · signal: see · confidence high
R. at 77-78; see Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005) (explaining discretionary certification procedure for late appeals, and noting BIA’s ruling thereon is not subject to judicial review).
discussed Cited "see, e.g." Cruz v. Barr
10th Cir. · 2020 · signal: see, e.g. · confidence medium
See, e.g., Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005) (“For an untimely claim to receive the benefit of equitable tolling, an alien must demonstrate . . . that [he] has exercised due diligence in pursuing the case during the period the alien seeks to toll.” (ellipsis and internal quotation marks omitted)).
discussed Cited "see, e.g." Vladimir Liadov v. Michael B. Mukasey
8th Cir. · 2008 · signal: see also · confidence medium
I conclude that the BIA’s decision whether to assert jurisdiction by certification pursuant to 8 C.F.R. § 1003.1 (c) is committed to agency discretion by law, because -13- there is “no law to apply.” See Heckler v. Chaney, 470 U.S. 821, 830 (1985); Tamenut v. Mukasey, No. 05-4418, slip op. at 8 (8th Cir. Mar. 11, 2008) (en banc) (per curiam); see also Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005); Saldana-German v. Ashcroft, 116 F. App’x 927 (9th Cir. 2004).
Retrieving the full opinion text from the archive…
Abdallah Hassan MAHAMAT, Petitioner,
v.
Alberto R. GONZALES, Attorney General, Respondent
04-9571.
Court of Appeals for the Tenth Circuit.
Dec 12, 2005.
430 F.3d 1281
Hakeem Ishola, Salt Lake City, UT, for Petitioner.**, Richard M. Evans, Marshall Tamor Golding, U.S. Department of Justice, Office of Immigration Litigation, Washington D.C., for Respondent.
Tymkovich, Porfilio, Baldock.
Cited by 59 opinions  |  Published
TYMKOVICH, Circuit Judge.

This petition for review challenges the Board of Immigration Appeals’ (BIA’s) decision rejecting petitioner Abdallah Hassan Mahamat’s ineffective-assistance-of-counsel claim. We deny the petition.

BACKGROUND

In 1998, Mr. Mahamat, a native and citizen of Chad, entered the United States on a non-immigrant tourist visa. He overstayed his visa and married Saña Ibrahim, a Sudanese national, who has since become a U.S. citizen.

In 1999, Mr. Mahamat appeared before an asylum officer and submitted an application- prepared by attorney Steven R. Lawrence for asylum, restriction on removal and protection against torture. The application, was based on Mr. Mahamat’s Gorane ethnicity and his political ties and activities in opposition to Chadian president Idriss Deby. On October 23, 2002, an Immigration Judge (IJ) denied the application. The IJ ordered Mr. Mahamat removed to Chad, but granted him voluntary departure until November 22, 2002. Mr. Mahamat retained Mr. Lawrence to appeal.

On either November 21 or 22, 2002, Mr. Lawrence deposited a notice of appeal with United Parcel Service (UPS) for next day delivery to the Board of Immigration Appeals (BIA). But because of a shipping delay, the BIA did not receive the notice until November 26. On January 28, 2003, the BIA dismissed the appeal as untimely, explaining that the notice was due no later than November 22, 2002.

Mr. Lawrence then filed a motion to reconsider, stating that he prepared the notice of appeal on November 21, 2002, and deposited it with UPS on November 22 for next day delivery. The Department of Homeland Security filed an opposition to reconsideration, noting that under Mr. Lawrence’s recounting of events, the notice of appeal would have been untimely even if properly delivered by UPS. In response, Mr. Lawrence submitted a “Corrected Affidavit,” stating that he deposited the notice with UPS on November 21, rather than November 22, as he had originally claimed. Mr. Lawrence further stated that “it was not the fault of [Mr. Maha-mat] for the untimeliness of the filing but that of counsel,” and that “[Mr. Mahamat] should not be responsible for the clear mistake of counsel.” Admin. R. at 90. In September 2003, the BIA- denied the motion to reconsider, reasoning that there was “no error of law or fact” in the decision to dismiss the appeal.. Id. at 93.

Mr. Mahamat retained hew counsel, Leonor Perretta, who filed a bar complaint against Mr. Lawrence. Mr. Mahamat executed a supporting affidavit, stating that in a discussion with Mr. Lawrence in December 2002 or January 2003, Mr. Lawrence faulted UPS for the notice of appeal’s late delivery and indicated that he would file a motion to reconsider with the BIA. Mr. Mahamat contended that Mr. Lawrence rendered ineffective assistance in appealing late.

Next, in November 2003, Ms. Perretta filed with the BIA a “Motion to Accept Late. Filed Appeal or Reinstate Appeal.”[*1283] Id. at 39. On June 22, 2004, the BIA construed the motion as seeking reconsideration and denied it, stating that the motion failed to meet the requirements of Matter of Lozada, 19 I. & N. Dec. 637' (BIA 1988), and that the motion was untimely and number-barred. Mr. Mahamat retained new counsel and petitioned this court for review.

DISCUSSION

Mr. Mahamat characterizes his “Motion to Accept Late Filed Appeal or Reinstate Appeal” as a motion to reopen, rather than a motion for reconsideration, which, he acknowledges, would be number-barred, see 8 C.F.R. § 1003.2(b)(2) (stating that “[a] party may file only one motion to reconsider”). Even if we accept that characterization, [3] we must still deny the petition.

The decision to grant or deny a motion to reopen proceedings is within the BIA’s discretion. 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s “decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir.2002) (quotation marks omitted).

A motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(e)(7)(C)(i). Here, Mr. Mahamat’s motion was filed over nine months after the BIA rendered its final decision dismissing Mr. Mahamat’s appeal. Consequently, the motion was untimely. [4]

Mr. Mahamat asserts, however, that the BIA should have equitably tolled the filing time. “For an untimely claim to receive the benefit of equitable tolling, ... an alien must demonstrate not only that the alien’s constitutional right to due process has been violated by the conduct of counsel, but that the alien has exercised due diligence in pursuing the case during the period the alien seeks to toll.” Iavorski v. INS, 232 F.3d 124, 135 (2d Cir.2000), see also Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002) (joining the Second and Ninth Circuits in holding that motions to reopen are subject to equitable tolling). The issue of equitable tolling must be exhausted through the BIA in order for this court to reach the issue. See 8 U.S.C. § 1252(d)(1) (providing that “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right”); Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002) (stating that equitable tolling of the time to reopen is not available where tolling “was not argued to the BIA nor discussed by the BIA”); see also Galvez Pineda v. Gonzales, 4SR F.3d 833, 837 (10th Cir.2005) (observing that a “[f]ailure to exhaust administrative remedies by not first presenting a claim to the BIA deprives this court of jurisdiction to hear it”). Nowhere in the “Motion to Ac[*1284] cept Late Filed Appeal or Reinstate Appeal,” which was filed over six months after the deadline for seeking reopening, did Mr. Mahamat seek a filing extension, ask the BIA to equitably toll the deadline, or even acknowledge that the motion was late. Because Mr. Mahamat did not exhaust the equitable tolling issue through the BIA, it was not preserved for our review, and we lack jurisdiction to consider the issue.

We also lack jurisdiction insofar as Mr. Mahamat argues that the BIA should have certified his case for review under 8 C.F.R. § 1003.1(c). That regulation provides:

The ... • [BIA] may in any case arising under paragraph (b) of this section [dé-fining the BIA’s appellate jurisdiction] certify such case to the [BIA], The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case....

8 C.F.R. § 1003.1(c). “The BIA occasionally avoids an untimeliness problem by dismissing an untimely appeal and accepting the case on certification.... ” Shamsi v. INS, 998 F.2d 761, 762 n. 2 (9th Cir. 1993) (discussing § 1003.1(e)’s predecessor, 8 C.F.R. § 3.1(e)); see also Desta v. Ashcroft, 329 F.3d 1179, 1185 (10th Cir.2003) (recognizing that certification allows the BIA to review “a case’ that otherwise could not properly be heard”). But Mr. Mahamat does not contend that he ever asked the BIA for certification. See Galvez Pineda, 427 F.3d at 837 (discussing exhaustion requirement). Nor does .he suggest any standards to judge the BIA’s exercise of discretion. See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for abuse of discretion.” (quotation marks omitted)); see, e.g., Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir.2004) (holding that this, court lacked jurisdiction to consider whether the BIA should have sua sponte reopened proceedings under 8 C.F.R. § 1003.2(a), “because there are no standards by which to judge the agency’s exercise of discretion”). Consequently, the certification issue is beyond review.

CONCLUSION

The BIA correctly decided that Mr. Ma-hamat’s “Motion to Accept Late Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide whether the BIA abused its discretion in finding the motion number-barred or non-compliant with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

The petition for review is DENIED. The Attorney General’s motion for summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1).

3

. A motion to reopen seeks to present evidence that "is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). A motion to reconsider, on the other hand, is available to raise errors of fact or law committed by the BIA in its prior decision, and must be supported by pertinent authority. 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). In Galvez Pineda v. Gonzales, 427 F.3d 833, 837 (10th Cir.2005), we observed that "[t]he appropriate method of presenting] [an ineffective assistance claim] is a motion to reopen the case before the BIA.”

4

. A motion for reconsideration does not affect a removal order's finality. Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).