NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 21-2065 ___________ BENOY THOMAS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A219-167-263) Immigration Judge: Lisa de Cordona ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 26, 2021 Before: KRAUSE, BIBAS and SCIRICA, Circuit Judges (Opinion filed: January 6, 2022) ___________ OPINION* ___________ PER CURIAM Pro se petitioner Benoy Thomas, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed as untimely his * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. appeal of an order issued by an Immigration Judge. For the following reasons, we will deny the petition for review. Thomas entered the United States in January 2016. The Government charged him with removability for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled substance). 8 U.S.C. § 1227(a)(2)(A)(iii). The Department of Homeland Security issued a Final Administrative Removal Order, see Administrative Record (A.R.) 474, and, on January 21, 2021, the IJ rendered an oral decision denying Thomas’ applications for withholding of removal and protection under the Convention Against Torture (CAT). A.R. 16. Thomas filed a pro se notice of appeal, A.R. 11, which the Board received on March 1, 2021. A.R. 7-10. The Board summarily dismissed the appeal because it was untimely filed. A.R. 2. Thomas filed a timely petition for review.1 A notice of appeal to the BIA of an IJ’s decision “shall be filed directly with the Board ... within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing of an Immigration Judge’s written decision.” 8 C.F.R. § 1003.38(b). “If the final date for filing falls on a Saturday, Sunday, or legal holiday, [the] appeal time shall be extended to the next business day.” Id. The date the BIA received the notice of appeal is the date it is considered filed. Id. at 1003.38(c). Indeed, an appeal is “not properly filed unless it is received at the Board, along with all required documents, fees 1 We have jurisdiction under 8 U.S.C. § 1252(a). 2 or fee waiver requests, and proof of service, within the time specified.” 8 C.F.R. § 1003.3(a)(1); see also 8 C.F.R. § 1003.38(d) (providing that the notice of appeal “must be accompanied” by the appropriate fee or fee waiver request form). The IJ denied Thomas’ applications for relief in an oral decision issued on January 21, 2021. It appears that the IJ’s order was electronically served on Thomas’ attorney on that date, A.R. 16-17, and was mailed to his attorney the next day, A.R. 15. Therefore, Thomas’ notice of appeal had to be received by the Board by Monday, February 22, 2021. See 8 C.F.R. § 1003.38(b). The Board did not receive Thomas’ …
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