Martinez v. Gonzales

MEMORANDUM ** Christian Zazueta Martinez, a native and citizen of Mexico detained in federal custody, petitions pro se for review of the Board of Immigration Appeals’ decision dismissing his appeal as one day late under 8 C.F.R. § 1003.38 , which provides that the date of the “filing” of a notice of appeal from an immigration judge’s decision is the date it is received by the Board. Zazueta Martinez contends that he gave the notice of appeal to prison authorities for making before it was due, and that the prison mailbox rule should apply. This contention lacks merit because the prison mailbox rule, deeming papers filed when delivered to prison authorities for forwarding to a court clerk, does not apply to filing deadlines set by administrative regulations that are promulgated and enforced by the executive branch and that define the term *706 “file.” See Nigro v. Sullivan, 40 F.3d 990, 994-96 (9th Cir.1994). Zazueta Martinez also contends that the time for appeal should be equitably tolled. He has not shown that his are the type of rare circumstances warranting an exception to the filing deadline. Cf. Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir.2005). We therefore deny the petition for review. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.