Emilia Eszterhazy, aka Emilia Toth, Barbara Emoke Toth v. Immigration and Naturalization Service
|Publisher||United States Court of Appeals for the Ninth Circuit|
|Publication Date||18 February 1993|
|Citation / Document Symbol||Fed. R. App. P. 34(a); 9th Cir. R. 34-4|
|Cite as||Emilia Eszterhazy, aka Emilia Toth, Barbara Emoke Toth v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); 9th Cir. R. 34-4, United States Court of Appeals for the Ninth Circuit, 18 February 1993, available at: http://www.refworld.org/docid/3ae6b6b0c.html [accessed 1 May 2016]|
|Comments||Submitted: 11 February, 1993; Filed: 18 February, 1993 The panel unanimously finds this case suitable for decision without oral argument|
EMILIA ESZTERHAZY, aka Emilia Toth; BARBARA EMOKE TOTH,
Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION
No. 92-70473 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 11, 1993, ** Submitted ** The panel unanimously finds this case suitable for
decision without oral argument. Fed. R. App. P. 34(a); 9th
Cir. R. 34-4.
February 18, 1993, Filed
Subsequent History: Reported as Table Case at 988 F.2d 118 .
Prior History:On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A27-581-020
Disposition:PETITION FOR REVIEW DENIED.
Judges:Before: GOODWIN, SCHROEDER, and CANBY, Circuit Judges.
Opinion:MEMORANDUM Emilia Eszterhazy, a native and citizen of Hungary, appeals the Board of Immigration Appeals' ("BIA") dismissal as untimely of her appeal of the decision of the Immigration Judge ("IJ") denying her application for asylum and withholding of deportation. We review de novo whether the BIA had jurisdiction to consider an untimely appeal. Montes v. Thornburgh, 919 F.2d 531, 534 (9th Cir. 1990). We deny the petition for review. Eszterhazy contends that it was an abuse of discretion for the BIA to dismiss her appeal because her notice of appeal was filed only one day late. This contention lacks merit. Section 242.21 of Title 8 of the Code of Federal Regulation provides in pertinent part that "an appeal shall be taken within 10 days after . . . the stating of an oral decision" by the immigration judge. This time limit is mandatory and jurisdictional. See Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir. 1980); Matter of Escobar, 18 I & N Dec. 412 (BIA 1983). 3.1(c). See Matter of Correa-Garces, Iterim Dec. 3169 (BIA 1992). The decision to certify an appeal rests within the BIA's discretion. See Matter of Iberia Airlines Flight No. IB 951, 19 I. & N. Dec. 768 (BIA 1988); 8 C.F.R. § 3.1(c) ("the Board may in any case arising under paragraph (b) of this section require certification of such case to the Board."). Here, however, Eszterhazy never sought certification by the BIA. Here, Eszterhazy filed her appeal 11 days after the IJ's decision. Accordingly, because her appeal was filed one day after her right to appeal expired, the BIA properly dismissed Eszterhazy's appeal for lack of jurisdiction. PETITION FOR REVIEW DENIED.
The BIA occasionally avoids an untimeliness problem by dismissing an untimely appeal and accepting the case on certification under 8 C.F.R. §