Arturo Barrientos v. Loretta E. Lynch

Good Law
829 F.3d 1064·2016 WL 3902661·95 Fed. R. Serv. 3d 44·2016 U.S. App. LEXIS 13170
United States Court of Appeals for the Ninth CircuitJuly 19, 201614-73178California1,311 words

Opinion

Opinion

ORDER

We must determine whether we have jurisdiction over a petition for review of a decision of the Board of Immigration Appeals that our clerk’s office received five days after the deadline for filing.

I

Arturo Alexander Barrientos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal and protection under the Convention Against Torture.

A

Under 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.” This deadline is “mandatory and jurisdictional.” Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014) (en banc) (quoting Stone v. INS, 514 U.S. 386, 405 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995)). The burden is on Barrientos to establish jurisdiction, as he is “the party invoking jurisdiction.” Haroutunian v. INS, 87 F.3d 374, 376 (9th Cir. 1996).

As a general matter, a filing in the court of appeals “is not timely unless the clerk receives the papers within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A) (emphasis added); see also Fed. R. App. P. 25(a)(2)(B) (treating briefs…

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