Afridi, Tahir M. v. Gonzales, Alberto R. , 208 F. App'x 489 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 13, 2006
Decided December 18, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1234
TAHIR MAHMOOD AFRIDI, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A95-925-145
ALBERTO R. GONZALES,
Respondent.
ORDER
Tahir Mahmood Afridi, a native of Pakistan, overstayed his visitor’s visa and was
ordered removed by an immigration court. He waived his right to appeal the removal order to
the Board of Immigration Appeals in exchange for voluntary departure, but later moved to
reopen the case arguing that his attorney was ineffective for agreeing to the appeal waiver.
Finding no prejudice, the immigration judge denied his motion and the Board affirmed. Afridi
then filed a second motion to reopen directly with the Board, which the Board dismissed as
numerically barred under 8 C.F.R. § 1003.2(c)(2). We dismiss Afridi’s petition for review of
that decision for lack of jurisdiction.
Afridi entered the United States on a visitor’s visa in April 2000. In April 2001 his
employer, ACE Movers and Rental, Inc., applied for a labor certificate on Afridi’s behalf as a
first step towards him becoming a lawful permanent resident under 8 U.S.C. § 1255(i). Although
Afridi’s labor certificate was approved, ACE later refused to apply for a work visa on his behalf
Nos. 06-1234 Page 2
because of a “falling out” between Afridi and the owner of ACE, who is one of his relatives. In
March 2003, the Department of Homeland Security initiated removal proceedings against Afridi.
At his first appearance before an immigration judge in April 2003, Afridi requested and
was granted a continuance. His attorney advised Afridi to “make peace” with his relative so that
ACE would apply for the visa, but Afridi responded that reconciliation was “not possible.”
Afridi then obtained two more continuances while searching for a new employer to sponsor him
for a labor certificate. In November 2003 he found a new employer to file the application, which
prompted the immigration judge to grant a fourth continuance.
In May 2004 Afridi asked for yet another continuance. The immigration judge granted
his request but warned him that he would be removed if he failed to apply for an adjustment of
status before his next hearing. The judge also warned that, if removal was ordered, Afridi would
be permitted to voluntarily depart only if he agreed not to appeal the order to the Board. Shortly
before his next hearing on February 23, 2005, Afridi learned that his second application for a
labor certificate had been sent to the Backlog Processing Center. Thus, at the hearing Afridi
requested a continuance for the sixth time. As promised, the immigration judge denied Afridi’s
request, found him removable as charged, and granted him voluntary departure after he waived
his right to appeal the removal order to the Board.
Afridi did not appeal or depart. Instead, in March 2005 Afridi, represented by new
counsel, filed a motion to reopen with the immigration judge, claiming that former counsel was
ineffective for allowing him to waive his right to appeal in exchange for voluntary departure.
The immigration judge denied this motion, reasoning that Afridi had failed to provide either
evidence that he filed a complaint regarding his former counsel with the appropriate disciplinary
authorities, or an explanation for not doing so as required by Matter of Lozada, 19 I & N Dec.
637 (BIA 1988). Afridi appealed, but the Board agreed with the immigration judge’s
interpretation of Matter of Lozada. The Board also rejected Afridi’s assertions that he did not
knowingly and intelligently waive his right to appeal in exchange for voluntary departure, and
that he was prejudiced by the waiver. The Board added, in any event, Afridi failed to
demonstrate he was eligible for any relief from removal. Afridi did not petition this court for
review of the Board’s decision.
On October 18, 2005, after complying with the requirements of Matter of Lozada, Afridi
filed a second motion to reopen directly with the Board. In December 2005 the Board found this
motion numerically barred under 8 C.F.R. § 1003.2(c)(2) and concluded that Afridi had not
identified any “extraordinary circumstances” that warranted exercising its sua sponte authority to
reopen. Afridi timely petitioned for review of the Board’s decision.
The parties first dispute this court’s jurisdiction and the applicable standard of review.
Afridi argues that the Board’s December 2005 order denying his second motion to reopen
“adopted and incorporated” the immigration judge’s decision and that this court should thus
review the initial decision of the immigration judge de novo. This argument is not persuasive
because the Board’s decision stands on its own, and because Afridi filed his second motion to
Nos. 06-1234 Page 3
reopen directly with the Board and never presented it to the immigration judge. Therefore, there
was no previous decision that the Board possibly could have adopted and incorporated into its
own decision. To the extent Afridi is arguing that the Board’s September 2005 decision
upholding the immigration judge’s denial of his first motion to reopen should allow us to review
the immigration court’s final order of removal, Afridi never filed a timely petition for review of
the Board’s decision on his first motion. Thus, the government correctly notes that we lack
jurisdiction to consider any of the arguments related to that motion. See 8 U.S.C. § 1252(b)(1);
Ajose v. Gonzales, 408 F.3d 393, 394-95 (7th Cir. 2005); Dakane v. United States Attorney Gen.,
399 F.3d 1269, 1272 n.3 (11th Cir. 2004) (citing Stone v. INS, 514 U.S. 386, 405 (1995)).
The only remaining issue Afridi presents is whether the Board erred in denying his
second motion to reopen. The government argues that under Pilch v. Ashcroft, 353 F.3d 585,
586 (7th Cir. 2003) we lack jurisdiction to consider this argument; nevertheless it goes on to
discuss why the argument lacks merit. For his part, Afridi ignores the jurisdictional issue
altogether; he did not address it in his opening brief, nor did he file a reply brief responding to
the government’s argument. The government is correct that we lack jurisdiction to consider
Afridi’s argument that the Board should have reopened his case; the Board’s decision not to
invoke its sua sponte authority to reopen deportation proceedings is discretionary and we
therefore cannot review it. Pilch, 353 F.3d at 586; Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
2006) (collecting cases). Thus, any further discussion of the parties’ arguments on the merits is
inappropriate here.
Accordingly, we DISMISS Afridi’s petition for review for lack of jurisdiction.