Raheemani v. Gonzales , 162 F. App'x 313 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit January 10, 2006
Charles R. Fulbruge III
Clerk
No. 04-60544
Summary Calendar
SALEEM KASSAMALI RAHEEMANI,
Petitioner
VERSUS
JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of
the Board of Immigration Appeals
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Saleem Kassamali Raheemani petitions this court to review a
Board of Immigration Appeals’ order denying his motion to reopen to
apply for adjustment of status. Because we find the BIA did not
abuse its discretion, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Petitioner is a native and citizen of Pakistan, who was
admitted to the United States in 1995 as a visitor and permitted to
remain until February 1996. In 2003, the Immigration and
Naturalization Service (“INS”) issued a Notice to Appear, charging
him with removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), as an alien who remained in the United States longer
than permitted. Raheemani admitted each of the allegations in the
Notice to Appear and conceded removability at his immigration
hearing. He requested voluntary departure, which was granted until
November 13, 2003. No appeal was taken from that order.
On August 18, 2003, Raheemani filed a motion to reopen for
adjustment of status with the immigration judge. He asserted that
his alien labor certification application was approved and that he
was the beneficiary of an I-140 visa petition which was pending
approval, and therefore his removal proceedings should be reopened
to allow him to apply for adjustment of status. The immigration
judge denied his motion to reopen, finding that the “approval of
the I-140 visa petition [was] highly problematic and the mere
filing of such a petition does not justify the reopening of a
case.” On appeal, the Board affirmed the immigration judge’s order
without opinion. This appeal followed.
II.
A.
The government argues that our decision in United States v.
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Assaad, 378 F.3d 471 (5th Cir. 2004) controls and that this court
lacks jurisdiction under section 242(a)(2)(B)(I) of the INA, 8
U.S.C. § 1252(a)(2)(B)(I), because the order related to a
discretionary adjustment of status. We disagree and conclude that
we have jurisdiction.
Under 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks
jurisdiction to review any order relating to the discretionary
adjustment of status pursuant to 8 U.S.C. § 1255.2 In Manzano-
Garcia v. Gonzalez, 413 F.3d 462 (5th Cir.2005), we addressed this
court’s jurisdiction to review a ruling on a motion to reopen under
INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). We stated that
we lacked jurisdiction over Manzano’s motion to reopen as it
related to his request for adjustment of status, “if the BIA had
actually made a discretionary determination on the merits to deny
such adjustment of status under INA § 245, 8 U.S.C. § 1255.” Id.
at 468. See also Medina-Morales v. Ashcroft, 371 F.3d 520, 526
(9th Cir.2004) (“If the denial of [the petitioner’s] motion to
reopen was a judgment regarding the granting of relief under . . .
2
8 U.S.C. § 1252(a)(2)(B)(i) provides:
Notwithstanding any other provision of law, no court shall
have jurisdiction to review --
(i) any judgment regarding the granting of relief under
section...1255 of this title, or (ii) any other decision or
action of the Attorney General the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General, other than the granting of relief under
section 1158(a) of this title.
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§ 1255 . . . then we are without jurisdiction to review the
discretionary aspects of the BIA’s decision.”).
In the instant case, the immigration judge denied Raheemani’s
motion to reopen after finding that “the approval of the I-140 visa
petition is highly problematic and the mere filing of such a
petition does not justify the reopening of a case.” This statement
does not amount to a decision on the merits of Raheemani’s
adjustment of status claim. Because the immigration judge’s order
was “not an adverse determination of the merits of [petitioner’s]
requested adjustment of status under § 1255,” this court is not
stripped of jurisdiction over the motion to reopen. Manzano-
Garcia, 413 F.3d at 469.
B.
We review the denial of a motion to reopen proceedings under
a highly deferential abuse of discretion standard. See Zhao v.
Gonzalez, 404 F.3d 295 (5th Cir.2005). See also Lara v. Trominski,
216 F.3d 487, 496 (5th Cir.2000)(“[M]otions for reopening of
immigration proceedings are disfavored...”)(quoting INS v. Doherty,
502 U.S. 314, 323, 112 S.Ct. 719). The United States Supreme Court
has found that even if the petitioner makes out a prima facie case
of eligibility for suspension of removal, the BIA can deny the
motion to reopen if it finds “the movant has not introduced
previously unavailable, material evidence.” INS v. Abudu, 485 U.S.
94, 104-05, 108 S.Ct. 904 (1988); see also, 8 C.F.R. § 1003.2(a)
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(“The Board has discretion to deny a motion to reopen even if the
party moving has made out a prima facie case for relief.”). We
will not disturb the BIA’s discretion “so long as it is not
capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather
than the result of any perceptible rational approach.” Pritchett
v. INS, 993 F.2d 80, 83 (5th Cir.1993)(citing Osuchukwu v. INS, 477
F.2d 1136, 1141-42 (5th Cir.1984)).
Raheemani argues that the BIA’s decision was legally erroneous
for two reasons. First, he contends the government failed to file
a timely opposition, and thus the motion should have been deemed
unopposed. See 8 C.F.R. §1003.23(b)(1)(iv). Second, he argues
that the immigration judge based his denial on “plainly erroneous
grounds–not any coherent discretionary one.”3 As petitioner points
out, there are “at least” three reasons a motion to reopen may be
denied: (1) failure of applicant to make a prima facie case for
underlying substantive relief sought; (2) failure to produce
previously unavailable material evidence; and (3) if the ultimate
relief sought is a discretionary decision (such as adjustment of
status), the BIA may “leap ahead...over the two threshold concerns
(prima facie case and new evidence/reasonable explanation), and
simply determine, that even if they were met, the movant would not
3
Particularly, petitioner argues that the immigration judge
committed legal error because he stated that Raheemani could await
the approval of his visa in Pakistan.
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be entitled to the discretionary grant of relief.” Abudu, 485 U.S.
at 105.
The immigration judge denied petitioner’s motion to reopen
because he found the “approval of the I-140 visa petition [was]
highly problematic and the mere filing of such petition does not
justify the reopening of a case.” We do not find the BIA’s reasons
for denying the motion to be capricious, racially invidious, or
otherwise so aberrational that it is arbitrary rather than the
result of any perceptible rational approach.” Also, the failure of
the government to file an opposition to the motion to reopen does
not require that the district judge grant the motion. The grant of
the motion remains discretionary even though it is unopposed. The
immigration judge was not obliged to grant a motion to reopen based
on a “problematic” pending I-140 petition. Under the very
deferential standard used to review denials of motions to reopen,
we cannot say that the Board erred in finding that the immigration
judged did not abuse his wide discretion. We therefore deny the
petition to review.
AFFIRMED.
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