Thomas v. Atty Gen USA , 201 F. App'x 131 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-19-2006
Thomas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3286
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3286
__________
SEAN NICHOLAS THOMAS
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from the
Board of Immigration Appeals
(BIA No. A26-142-057)
Initially Docketed as an Appeal from EDPA No. 04-cv-03513
Prior to the Enactment of the Real ID Act of 2005
Immigration Judge: Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
September 28, 1006
Before: RENDELL, ROTH, GIBSON*, Circuit Judges.
(Filed October 19, 2006)
__________
OPINION OF THE COURT
__________
* Honorable John R. Gibson, Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
RENDELL, Circuit Judge.
Sean Thomas petitions for review of the denial of his motion to reopen and
reconsider his eligibility for relief from removal. For the reasons provided below, we will
grant Thomas’s petition and remand this case for proceedings consistent with this
opinion.
I.
Thomas appeals an order by the Bureau of Immigration Affairs denying as
untimely his motion to reopen his case. Having conceded he is statutorily removable on
account of a gun conviction, Thomas had initially petitioned the BIA for relief from
removal in light of his pending application for an immigrant visa (“the I-130”) and his
application for naturalization which was also pending. The BIA denied the motion, but it
stated that in “the event that the Department [of Homeland Security] approves either the
respondent’s application for naturalization or the visa petition, he may file a timely
motion to reopen on that basis.” The BIA thus made clear that, but for the absence of an
approved I-130 or naturalization application, Thomas would have a claim deserving to be
heard on the merits. Thomas had 90 days to move the BIA to re-open the case, 8 C.F.R. §
1003.2(c)(2), but lacked reason to do so until either application was approved.
The I-130 was approved on May 21, 2004. Counsel was notified by the
Department of Homeland Security (DHS) on May 26, 2004. He filed a motion to reopen
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with the BIA the next day, May 27, 2004, and the BIA received the motion on the 28th.
The BIA denied the motion as untimely, the 90-day deadline having elapsed on the 27th.
II.
The nature of the relationship between DHS and the BIA is such that applicants
seeking adjustment of status from the BIA are often dependent on the actions (not to
mention the alacrity) of a separate agency, DHS. In many cases, applications for forms
such as the I-130 may receive approval well after such approval outlives its usefulness to
the petitioner. In cases such as these, the role of the BIA and the Court of Appeals is
necessarily circumscribed.
On the instant facts, however, approval of the I-130 occurred prior to the 90-day
deadline. This case thus falls into a far narrower category, and attempts to reopen
premised on visa applications approved after the 90-deadline are not before us. In this
case, the DHS approval arrived days before the deadline, and there is no dispute that the
loss of time between approval and notification of the attorney was due to DHS. The
attorney upon being notified reacted and contacted the BIA as quickly as possible. There
is no contention by the Government that Thomas’s counsel acted with anything less than
the utmost haste. Moreover, the BIA had previously expressed its willingness to consider
petitioner’s claim, and noted that an approved application would allow the case to be
reopened if deemed timely.
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We note that the BIA Practice Manual deems a motion filed when it is received by
the BIA, not when it is mailed. See BIA Practice Manual § 3.1(a)(I) (2004). However,
the BIA does not interpret the 90-day deadline as being ironclad. See BIA Practice
Manual § 3.1(b)(iv) (2004) (“Postal or delivery delays do not affect existing deadlines,
nor does the Board excuse untimeliness due to such delays, except in rare
circumstances.”) (emphasis added); BIA Practice Manual § 4.7(d) (2004) (“The Board
has the discretion to consider a late-filed brief, but does so rarely.”). It is not apparent
from the BIA’s cursory opinion in this matter whether such consideration was given in
this case to the delay from DHS, the actions taken by counsel, or the apparently
meritorious claim Thomas presents.
III.
We believe it appropriate that we remand Thomas’s petition for review to the BIA
for further consideration in light of his approved I-130, the extremely minor delay which
caused no prejudice to any party, and the BIA’s stated willingness to consider the merits
of the claim. For these reasons we will REMAND the petition to the BIA for further
proceedings not inconsistent herewith.
4