Sulam Sidhwani v. U.S. Attorney General , 191 F. App'x 873 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 1, 2006
Nos. 05-16603 & 06-10960 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A96-295-179
SULAM SIDHWANI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 1, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Sulam Sidhwani, through counsel, petitions for review of the Board of
Immigration Appeals’ (“BIA’s”) decisions (1) affirming an Immigration Judge’s
(“IJ’s”) order denying Sidhwani’s motion to reopen removal proceedings, and
(2) denying Sidhwani’s motion for reconsideration of the BIA’s decision affirming
the denial of Sidhwani’s motion to reopen. We deny the petitions.
I.
Sidhwani, a native and citizen of Pakistan, was admitted to the United States
in May of 1999 as a nonimmigrant, with authorization to remain until November
29th of that year. In February of 2003, he was issued a Notice to Appear (“NTA”)
that charged him with being removable for remaining in the United States beyond
his authorization, and for failing to maintain or comply with the conditions of the
nonimmigrant status under which he was admitted, all in violation of the
Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1227(a)(1)(B), (C)(i).
At a May 2003 hearing, Sidhwani conceded all allegations against him in the NTA,
except for an allegation of unauthorized employment. However, he later requested
a continuance of his removal hearing because he had a pending application for
labor certification. An IJ denied the request, finding that the pending application
for labor certification did not constitute good cause for a continuance, see 8 C.F.R.
§ 1003.29, because adjustment of status relief was speculative and because
granting relief would reward those who did not seek to have their prospective
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employer obtain a visa for them before their arrival. On January 29, 2004, the IJ
granted Sidhwani’s request for voluntary departure in lieu of removal, with a
departure deadline of March 29, 2004, and imposed an alternate order of removal
to Pakistan.1
Sidhwani did not appeal the IJ’s decision to the BIA, but rather filed a
motion to reopen with the IJ on March 9, 2005, almost a year after his voluntary
departure deadline had passed. He argued that: (1) the denial of his request for a
continuance (based upon the pending labor certification) was improper; (2) he had
new relief available in the form of a pending I-140 petition filed on his behalf; and
(3) the addition of INA § 245(i), 8 U.S.C. § 1255(i), which allows certain aliens
physically present in the United States to apply for adjustment of status based,
inter alia, on an application for labor certification, was an “exceptional
circumstance” excusing his failure to depart voluntarily. The government opposed
Sidhwani’s motion, arguing that it was untimely and filed for no reason other than
to frustrate his removal, and that adjustment of status relief was speculative
because Sidhwani’s I-140 petition was merely pending.2 The government also
argued that Sidhwani had no regard for U.S. immigration laws, because he had
1
Although the record is unclear, it appears that Sidhwani may have again requested a
continuance at the hearing on January 29, 2004, because he then had an I-140 employment-based
visa petition pending. According to Sidhwani, the request was denied.
2
In an emergency motion for a stay of removal pending adjudication of the motion to reopen,
however, Sidhwani attached a document indicating that his I-140 petition had been approved.
3
overstayed his original visa, engaged in unauthorized employment, failed to post a
bond, and stayed beyond his voluntary departure date.
The IJ issued a written order denying the motion to reopen, explaining that:
(1) Sidhwani’s motion to reopen was filed beyond the 90-day deadline for such
motions, see 8 C.F.R. § 1003.23(b)(1); (2) Sidhwani had failed to leave the United
States voluntarily by his departure date, and was therefore ineligible for adjustment
of status relief for 10 years, see 8 U.S.C. § 1229c(d)(1)(B); In re Shaar, 21 I. & N.
Dec. 541 (BIA 1996) (en banc); (3) the government opposed the motion to reopen;
and (4) Sidhwani had failed to present exceptional circumstances warranting relief,
see In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997) (en banc). Although Sidhwani
invoked In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc)
(explaining that a motion to reopen to apply for adjustment of status, pending
approval of an I-130 visa petition, may be granted provided that certain criteria are
met), the IJ distinguished Velarde-Pacheco on the grounds that the motion to
reopen in that case was timely filed, and the case involved an adjustment of status
based on marriage, not employment.
Sidhwani appealed to the BIA, arguing that the IJ erred in denying his
motions for a continuance and to reopen, because: (1) Sidhwani had demonstrated
a prima facie case for relief; (2) INA § 245(i) allows the beneficiary of an
immigrant visa petition or labor certification application filed before April 30,
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2001, to apply for an adjustment of status without leaving the United States;
(3) Velarde-Pacheco shows that removal proceedings can be reopened where an
alien shows he is eligible for an adjustment of status; and (4) under Azarte v.
Ashcroft, 394 F.3d 1278 (9th Cir. 2005), the voluntary departure period can be
tolled while a motion to reopen is pending. On November 2, 2005, the BIA
dismissed Sidhwani’s appeal for several reasons. First, the BIA found that it
lacked jurisdiction to consider Sidhwani’s appeal regarding the IJ’s denial of his
motion for a continuance, because Sidhwani had failed to appeal that decision.
Second, the BIA declined to apply Azarte outside the Ninth Circuit, and noted that,
unlike the petitioner in Azarte, Sidhwani had not filed his motion to reopen during
his voluntary departure period. See Azarte, 394 F.3d at 1289. Finally, the BIA
stated it would not address Sidhwani’s claim that Velarde-Pacheco should extend
beyond family-based visa petitions to labor-based visa petitions. The IJ’s denial of
Sidhwani’s motion to reopen, the BIA concluded, was appropriate.
Several weeks later, Sidhwani filed with the BIA a motion to reconsider the
BIA’s decision affirming the denial of Sidhwani’s motion to reopen. He argued
that the BIA had erred in refusing to address his claim that Velarde-Pacheco
should apply to labor-based visa petitions, and in declining to apply Azarte without
sufficient explanation. Sidhwani emphasized that the record contained no evidence
that he was admonished by an IJ for failing to depart voluntarily, and requested
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that the BIA “exercise its equitable tolling power and reinstate the voluntary
departure or extend it pursuant to its regulatory and statutory power . . . .” The
BIA denied the motion to reconsider, stating that Sidhwani’s motion to reopen had
been found untimely filed by the IJ, and that under Eleventh Circuit law, the filing
deadline for a motion to reopen under 8 C.F.R. § 1003.2(c)(2) is mandatory and
jurisdictional. See Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005)
(per curiam). The BIA also reaffirmed its earlier refusal to apply Azarte, and stated
that it (the BIA) had “no authority to grant extensions of voluntary departure,”
citing 8 C.F.R. § 1240.57. Sidhwani now petitions for review of the BIA’s
decisions affirming the denial of his motion to reopen and denying his motion to
reconsider.
II.
On appeal, Sidhwani contends that the BIA erred because: (1) the BIA
should have considered INA § 245(i) an exception to the 90-day time limit on the
filing of motions to reopen; (2) the BIA should have remanded the case for a
factual determination on whether it presented extraordinary circumstances
warranting reopening; and (3) the BIA’s refusal to reopen Sidhwani’s case
deprived him of due process.
“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
6
We review the denial of motions to reopen and for reconsideration for an abuse of
discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per curiam)
(motion to reopen); Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1340-41 (11th Cir.
2003) (motion to reconsider). “Our review is limited to determining whether there
has been an exercise of administrative discretion and whether the matter of
exercise has been arbitrary or capricious.” Abdi, 430 F.3d at 1149 (internal quotes
and citation omitted). To the extent Sidhwani claims the BIA’s actions deprived
him of due process, however, our review is de novo. See Ali, 443 F.3d at 808.
“Motions to reopen are disfavored, especially in a removal proceeding,
where, as a general matter, every delay works to the advantage of a deportable
alien who wishes merely to remain in the United States.” Abdi, 430 F.3d at 1149(internal quotes and citation omitted). An alien may file one motion to reopen
removal proceedings, and that motion “shall state the new facts that will be proven
at a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” 8 U.S.C. § 1229a(c)(6)(A), (B) (2004); id. §
1229a(c)(7)(A), (B) (2005). Subject to certain exceptions set forth in the statute
and regulations, “the motion to reopen shall be filed within 90 days of the date of
entry of a final administrative order of removal.” Id. § 1229a(c)(6)(C)(i) (2004);
id. § 1229a(c)(7)(C)(i) (2005); see also 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)
(2005). As for a motion to reconsider filed with the BIA, it must, inter alia,
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“specify the errors of law or fact in the previous order” and “be supported by
pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C) (2005); see also 8 C.F.R. §
1003.2(b)(1) (2005).
In the instant case, the record indicates that the IJ, when granting Sidhwani’s
request for voluntary departure with a deadline of March 29, 2004, also entered an
alternate order of removal to Pakistan. See 8 C.F.R. § 1240.26(d) (2004).
Sidhwani does not dispute that this order of removal became final upon the
overstay of his voluntary departure period. See id. § 241.1(f) (2004), id. §
1241.1(f) (2005). Nor does he dispute that he filed his motion to reopen far outside
the 90-day limit, on March 9, 2005, and that the motion does not fall within any
listed exception. Rather, Sidhwani contends that the 90-day limitation should not
apply because his failure to depart was not “voluntary,” and was merely due to the
fact that he seeking to achieve an adjustment of status under INA § 245(i), 8
U.S.C. § 1255(i). He notes that the Ninth and Second Circuits have applied
equitable tolling to the 90-day limit on filing a motion to reopen before the BIA.
See Socop-Gonzales v. INS, 272 F.3d 1176, 1190 (9th Cir. 2001) (en banc) (“[W]e
conclude that the filing deadline for motions to reopen is subject to equitable
tolling.”); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (“Because there is no
evidence that Congress intended to enact a jurisdictional bar to untimely motions
to reopen, the limitations period for such motions may be equitably tolled to
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accommodate claims of ineffective assistance of counsel.”). In Abdi, however, this
Circuit held that the BIA did not abuse its discretion when it denied a petitioner’s
untimely motion to reopen, because the 90-day limit was “mandatory and
jurisdictional, and . . . not subject to equitable tolling.” 430 F.3d at 1150. Indeed,
the BIA recognized as much in its opinion denying Sidhwani’s motion to
reconsider the decision affirming the IJ’s denial of his motion to reopen. Although
Sidhwani also claims that his case presents “exceptional circumstances,” he
concedes that the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), which is applicable to his case, eliminated that exception to the
imposition of certain penalties on an alien who overstays his voluntary departure
deadline. See 8 U.S.C. § 1229c(d) (describing civil penalties imposed on an alien
who fails to depart voluntarily by his deadline); Ugokwe v. U.S. Att’y Gen., 11th
Cir. 2006, __ F.3d at __ n.5, slip op. at 2843 n.5 (No. 05-15237, June 28, 2006)
(“IIRIRA specifically excised statutory language in the INA that stated that ‘any
alien allowed to depart voluntarily . . . who remains in the United States after the
scheduled date of departure, other than because of exceptional circumstances, shall
not be eligible for . . . relief . . . .’”) (quoting 8 U.S.C. § 1252b(e)(2)(A) (1994)).3
3
Sidhwani further claims that the provisions of 8 U.S.C. § 1255(i), which authorize an
adjustment of status for certain aliens physically present in the United States, “trump” the penalties
imposed under§ 1229c(d), including a 10-year period of ineligibility for relief. We need not reach
the merits of this claim, because the untimeliness of Sidhwani’s motion to reopen provides sufficient
support for the BIA’s decisions affirming the IJ and denying Sidhwani’s motion for reconsideration.
Notably, Ugokwe holds that “the timely filing of a motion to reopen tolls the period of voluntary
9
Given our holding in Abdi, the BIA did not abuse its discretion when, in the course
of affirming the IJ’s denial of Sidhwani’s motion to reopen, and denying his
motion to reconsider, the BIA did not toll the 90-day limit on a motion to reopen.
Sidhwani also contends that the BIA should have remanded his case for a
factual determination on whether his case presented “extraordinary circumstances”
warranting reopening, because regulations state that the BIA “will not engage in
factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv).
Sidhwani does not identify the alleged “factfinding” of which he complains,
however, and this argument therefore fails to persuade.4
Finally, Sidhwani claims that the BIA violated his due process rights by
failing to address why the 90-day time limit on motions to reopen should not be
equitably tolled, in that he “could not help that his case was approved” after the 90-
day limit on the filing of a motion to reopen had passed. As explained above,
however, the BIA noted in its opinion denying Sidhwani’s motion to reconsider
that the deadline for filing a motion to reopen is “mandatory and jurisdictional,”
departure pending the resolution of the motion to reopen.” __ F.3d at __, slip op. at 2846 (emphasis
added). Unlike the petitioner in Ugokwe, Sidhwani did not file a timely motion to reopen.
4
Sidhwani further asserts that a three-member BIA panel should have convened to decide
the appeal on his motion to reopen (which was disposed of by a single BIA member), but does not
explain why. We reject this conclusory assertion, and note we have previously held that “under the
regulations, no entitlement to a full opinion by the BIA exists.” Lonyem v. U.S. Att’y Gen., 352 F.3d
1338, 1342 (11th Cir. 2003) (per curiam); see 8 C.F.R. § 1003.1(e)(5).
10
thereby indicating that equitable tolling was unavailable. See Abdi, 430 F.3d at
1150. Even if the BIA had not done so, Sidhwani still would not have established
a due process violation. “To establish due process violations in removal
proceedings, aliens must show that they were deprived of liberty without due
process of law, and that the asserted errors caused them substantial prejudice.”
Lonyem, 352 F.3d at 1341-42. Generally, an IJ and the BIA have discretion to
grant or deny a motion to reopen–and may deny the motion even if the moving
party has made a prima facie case for relief. See 8 C.F.R. §§ 1003.2(a);
1003.23(b)(3).5 Similarly, the decision to adjust an alien’s status ultimately lies
within the discretion of the Attorney General. See 8 U.S.C. § 1255(a). “[T]he
failure to receive relief that is purely discretionary in nature does not amount to
deprivation of a liberty interest.” Garcia v. Att’y Gen., 329 F.3d 1217, 1224 (11th
Cir. 2003) (per curiam).
III.
Sidhwani filed his motion to reopen after the mandatory and jurisdictional
90-day time limitation for doing so had expired, and he did not demonstrate in his
motion for reconsideration that the BIA had committed an error of law or fact in
affirming the IJ’s denial of his motion to reopen. Thus, the BIA did not abuse its
5
Likewise, the decision to grant or deny a motion to reconsider is within the BIA’s
discretion. 8 C.F.R. § 1003.2(a).
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discretion in affirming the IJ’s decision denying Sidhwani’s motion to reopen, or in
denying his subsequent motion for reconsideration. Nor did the BIA’s actions
deprive Sidhwani of due process. Accordingly, we deny his petitions.
PETITIONS DENIED.
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