Hirani v. United States Attorney General , 412 F. App'x 194 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12355 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 5, 2011
________________________ JOHN LEY
CLERK
Agency No. A072-020-097
AMYN A. HIRANI,
lllllllllllllllllllll Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 5, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Amyn Hirani petitions this court for review of the Board of Immigration
Appeals’ (BIA) order denying his motion to reopen removal proceedings. Hirani
filed the motion nearly ten years after he was granted voluntary departure. The
Immigration Judge (IJ), as affirmed by the BIA, denied Hirani’s motion to reopen
because it was untimely and because of Hirani’s efforts to avoid enforcement of
the departure order. We deny the petition.
I.
In March 2009, almost ten years after he was granted voluntary departure,
Hirani filed a motion to reopen his removal proceedings. Hirani claimed that
exceptional circumstances warranted reopening his proceedings because he was
unable to depart the United States as he was the sole provider for his two children,
who are United States citizens. But Hirani’s motion was not filed within 90 days
of the IJ’s final administrative decision granting voluntary departure.
Additionally, Hirani had failed to depart within the time allowed and changed his
name to avoid immigration officers. The IJ denied his motion as untimely.
Further, the IJ determined that Hirani was not eligible for adjustment of status
because he failed to file the proper forms in support of his application and he did
not demonstrate prima facie eligibility for relief.
Hirani filed a motion for reconsideration, which the IJ denied, reiterating
that his motion to reopen was untimely. Though the IJ recognized that he had the
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power to reopen any case over which he had jurisdiction, he declined to exercise
discretion, given that Hirani had not departed as ordered in 1999, had changed his
name to avoid detection by immigration officials, and had moved to a different
state to avoid enforcement of the voluntary dismissal order. Hirani filed a notice
of appeal with the BIA.1 The BIA affirmed the IJ’s ruling. Hirani then filed a
petition for review with this court.
II.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Judicial review
for abuse of discretion is “limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Zhang v. U. S. Att’y Gen., 572
F.3d 1316, 1319 (11th Cir. 2009). The BIA’s discretion to reopen “is so wide that
even if the party moving has made out a prima facie case for relief, the BIA can
deny a motion to reopen a deportation order.” Anin v. Reno, 188 F.3d 1273, 1279
(11th Cir. 1999) (internal quotation marks omitted). “Generally, motions to
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Although the BIA construed Hirani’s appeal as one from the IJ’s denial of his motion to
reconsider, rather than from the original motion to reopen, the BIA focused its analysis on the
merits of the underlying motion to reopen, ultimately concluding that the motion was untimely
and that the case lacked the exceptional circumstances warranting the exercise of its sua sponte
authority to reopen.
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reopen are disfavored, especially in a removal proceeding, where . . . every delay
works to the advantage of the deportable alien who wishes merely to remain in the
United States.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).
III.
Hirani seeks review on two grounds. First, he argues that the BIA erred
when it incorrectly construed his appeal as one from the motion to reconsider,
rather than the original motion to reopen. Second, he argues that his wife’s new
status as a citizen establishes his prima facie eligibility for relief from removal.
A motion to reopen must be filed no later than 90 days after the final
administrative decision, see 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1), but there is
an exception in asylum and withholding-of-removal cases. The 90-day limit shall
not apply if “based on the changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Additionally, “[t]he Board may
at any time reopen or reconsider on its own motion any cases in which it has
rendered a decision.” 8 C.F.R. § 1003.2(a).
The BIA did not abuse its discretion when it affirmed the IJ’s decision.
Although Hirani argues that his case should be remanded because the BIA
incorrectly construed his appeal as one from the IJ’s denial of his motion to
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reconsider, his argument ignores the substance of the dismissal, namely that the
circumstances of Hirani’s case did not warrant the exercise of the BIA’s discretion
to reopen.
Hirani’s motion was filed almost ten years after he was granted voluntary
departure. Additionally, Hirani moved to another state and changed his name to
avoid detection by immigration officials. The BIA emphasized that all of the
decisions in Hirani’s case stemmed from the untimeliness of his original motion to
reopen. Thus, Hirani has failed to demonstrate that the BIA’s misconstruction of
his appeal was prejudicial.
Further, Hirani does not argue that he should be excepted from the 90 day
filing period, but that the BIA should exercise its discretion to sua sponte reopen
his proceedings based on his eligibility for adjustment of status. In essence, Hirani
is challenging the BIA’s decision not to reopen. We lack the jurisdiction to review
that decision. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008)
(this court lacks jurisdiction to review the BIA’s decision not to sua sponte
reopen). In light of Hirani’s efforts to avoid departure and the untimeliness of his
motion, the BIA did not abuse its discretion when it denied his appeal.
PETITION DENIED.
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