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Leonida M. Sarmiento and v. Eric H. Holder, Jr., Attorney General of the United States

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ARGUED APRIL 25, 2012

Before POSNER, SYKES and TINDER, Circuit Judges.

An alien subject to an order of removal has 90 days from the entry of a final admin- istrative order of removal to seek to reopen the removal proceedings. The question presented in this case is whether the filing of a motion to reconsider an order of removal tolls that 90-day period until a ruling is made on a motion to reconsider. An Immigration Judge ordered removal for Leonida and Romeo Sarmiento after refusing to adjust their status to permanent residents, and the Board of Immigration Appeals dis- missed their appeal. The Sarmientos moved the Board for reconsideration, which it denied. Within 90 days of that denial, but several months after the Board’s initial dismissal, the Sarmientos moved to reopen. The Board denied the motion as untimely, concluding that a motion to reopen must be filed within 90 days of the dismissal of the Board appeal, regardless of the pendency of a motion to reconsider the removal order. Because the Board’s interpretation of the applicable statute and regulation is reasonable, the petition for review presented to this court is denied.

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