Nishino v. Gonzales

MEMORANDUM ** Ryoji Nishino, a native and citizen of Japan, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing as untimely his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and deny the petition for review. Nishino’s opening brief states that he “caused his notice of appeal [to the BIA] to be sent by Express U.S. Mail Overnight service on January 8, 2005.” There is no evidence in the record to support this statement. See Gafoor v. INS, 231 F.3d 645, 655 (9th Cir.2000) (“[0]ur review of BIA decisions is generally limited to the record.”). Nishino nonetheless contends that the BIA’s application of 8 C.F.R. § 1003.38 to dismiss his appeal as untimely violated due process. Reviewing de novo, see Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006), we disagree. Unlike the petitioner in Gonzalez-Julio v. INS, 34 F.3d 820 (9th Cir.1994), Nishino has not demonstrated that the applicable regulation “results in uncertainty and arbitrary results.” Id. at 825 . 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 Ninth Circuit Rule 36-3.