CA1: No BIA jurisdiction, no relief

Osorno v. Gonzales, No. 05-1279 (unpublished) holds that the time-line for filing with an appeal BIA is jurisdictional.  (Not only do I think that this is wrong, but I note that the Second Circuit disagrees.  See Sun v. Gonzales, 421 F.3d 105 (2d. Cir. 2005) (our coverage here))  Also, it holds that there was no abuse of discretion in denying the motion to reconsider below.  So, this guy has to go back to Columbia.

Update: a commentator notes that Sun involves an appeal to the BIA, and this case involves a petition for judicial review.    Therefore, I am left with just my fallback position: that the characterization of 8 U.S.C. § 1252(b)(1) ("The petition for review must be filed not later than 30 days after the date of the final order of removal.") as jurisdictional by the First is incorrect, under Arbaugh v. Y & H Corp., -- U.S. – (2006) (“time prescriptions, however emphatic, "are not properly typed 'jurisdictional.' ”) .

Comments

[Snowball007]

The untimely appeal in Osorno was the petition for review in the Court of Appeals. The Sun case involved an untimely appeal to the BIA. Perhaps the "exceptional circumstances" rule used by the 2d Cir. with respect to appeals from an IJ to the BIA should also apply to appeals from the BIA to the Court of Appeals, but I don't think that's the holding of Sun.