FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 3, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10375

Non-Argument Calendar

________________________

Agency No. A94-867-288

DIEGO ARMANDO MUNOZ GUTIERREZ, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 3, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
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The issue presented in this appeal is whether the BIA abused its discretion

in denying Diego Armando Munoz Gutierrez’s motion for reconsideration of the

BIA’s dismissal of his appeal from a removal order. 

Background

Gutierrez, a native and citizen of Colombia, entered the United States on a

non-immigrant visa and remained beyond the expiration period. He was charged

with removability under 8 U.S.C. § 1227(a)(1)(B). He conceded the allegations

and was permitted to voluntarily depart.

Thereafter, Gutierrez moved to reopen removal proceedings and requested a

stay of removal. The IJ denied both motions in orders dated June 12, 2007. The IJ

was based in Virginia and faxed the orders to the immigration court in Florida on

that date. The following day, the decisions were mailed to Gutierrez and the

certificate of service was dated June 13, 2007. A notation on the order denying

the motion for a stay indicated that any appeal was due by July 16, 2007. There

was no similar notation on the order denying the motion to reopen.

Gutierrez appealed to the BIA, which received the appeal on July 16, 2007. 

The regulations provide that the notice of appeal to the BIA “shall be filed directly

with the Board of Immigration Appeals within 30 calendar days after . . . the

mailing of an Immigration Judge’s written decision. If the final date for filing
Gutierrez also argues, alternatively, that the IJ mislead him as to the due date because the 1

IJ noted on the order denying the stay that the appeal was due by July 16. Gutierrez failed to raise

this argument to the BIA; it is, therefore, improper before this court. See Lonyem v. U.S. Att’y Gen.,

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falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to

the next business day.” 8 C.F.R. § 1003.38(b) (emphasis added); see also BIA

Practice Manual, §§ 3.1(b)(ii), 4.5(a). The BIA then dismissed the appeal as

untimely, concluding that because the certificate of service was dated on June 13,

the IJ’s decision was “mailed” on June 13; thus, the appeal was due by July 13. 

Gutierrez filed a motion for reconsideration, asserting that the IJ’s decision

was postmarked on June 14, and that, therefore, June 14 was the date of mailing

for purposes of triggering the 30-day clock. According to Gutierrez, 30 days from

that day was July 14, but because July 14 was a Saturday, the appeal was due the

next business day, July 16.

The BIA denied the motion for reconsideration, concluding that there was

no basis for reconsidering the previous decision and noting that Gutierrez offered

no BIA or circuit precedent to support his argument.

Discussion

Gutierrez acknowledges that he only had 30 days from the mailing of the

IJ’s orders to appeal. He contends, however, that the clock began the day the

orders were postmarked, not the day on the certificate of service.

1
352 F.3d 1338, 1341 n.5 (11th Cir. 2003). 

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This court reviews the BIA’s denial of a motion to reconsider for abuse of

discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). 

Review of the BIA’s decision is “limited to determining whether there has been an

exercise of administrative discretion and whether the matter of exercise has been

arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005). A reviewing court must defer to an agency’s decision if the agency has

made a reasonable interpretation of its own regulations. McHenry v. Bond, 668

F.2d 1185, 1195 (11th Cir. 1982). 

Additionally, “[a] motion to reconsider shall state the reasons for the motion

by specifying the errors of fact or law in the prior [BIA] decision and shall be

supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). 

Here, the BIA did not abuse its discretion. In his motion, Gutierrez did not

have any binding legal authority to support his argument that the date of the

postmark was the triggering date for computing his 30-day window to file the

appeal. Nor does he cite any such law on appeal. The regulations provide that the

notice of appeal to the BIA “shall be filed directly with the Board of Immigration

Appeals within 30 calendar days after . . . the mailing of an Immigration Judge’s
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written decision.” 8 C.F.R. § 1003.38(b). The BIA considered its own rule and

determined that the date of mailing was determined by the certificate of service,

not the post-mark date. The BIA’s determination was reasonable. Gutierrez fails

to show an abuse of discretion.

Accordingly, we DENY the petition.