Onana v. Gonzales , 150 F. App'x 191 ( 2005 )

Rehearing granted, January 11, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2087
MATHURIN MARC OLAMA ONANA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A73-556-660)
Submitted: July 22, 2005 Decided: September 23, 2005
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Steven Kreiss, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant
Director, Michelle E. Gorden, Senior Litigation Counsel, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mathurin Marc Olama Onana, a native and citizen of
Cameroon, petitions for review of an August 4, 2004 order of the
Board of Immigration Appeals (“Board”) denying his second motion to
reopen immigration proceedings. For the reasons set forth below,
we dismiss the petition for review as moot.
In his second motion to reopen, Onana claimed that former
counsel was ineffective for failing to pursue a hardship waiver
pursuant to 8 U.S.C. § 1186a(c)(4)(A) (2000) based on Onana’s
contention that his removal would cause hardship to his United
States citizen child. In its order, the Board denied Onana’s
motion to reopen on procedural grounds and declined to reach the
merits of Onana’s ineffective assistance of counsel claim.
While Onana’s petition for review of the Board’s denial
of his motion to reopen was pending before this court, Onana filed
a motion to reconsider with the Board. In an order dated
October 28, 2004, the Board denied the motion to reconsider. In
rendering its decision, it considered the merits of Onana’s
ineffective assistance of counsel claim and concluded that the case
did not warrant reopening.*
*
We note that Onana did not file a petition for review of the
Board’s order denying reconsideration and thus we have no
jurisdiction to review that decision. See Stone v. INS, 514 U.S.
386, 405 (1995).
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Upon review, we find that the Board’s order of
October 28, 2004, has rendered Onana’s petition for review moot.
A federal court has no authority to render decisions on moot
questions. Church of Scientology of Cal. v. United States, 506
U.S. 9, 12 (1992). “[A] case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest
in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
“This case-or-controversy requirement subsists through all stages
of federal judicial proceedings, trial and appellate.” Lewis v.
Con’l Bank Corp., 494 U.S. 472, 477-78 (1990). Thus, “if an event
occurs while a case is pending on appeal that makes it impossible
for the court to grant ‘any effectual relief whatever’ to a
prevailing party, the appeal must be dismissed.” Church of
Scientology of Cal., 506 U.S. at 12 (citations omitted).
We conclude that the Board’s subsequent order of
October 28, 2004, has rendered it impossible for this court to
grant Onana “any effectual relief whatever.” Id. Even if this
court were to find that the Board abused its discretion in denying
Onana’s second motion to reopen on procedural grounds, the
appropriate remedy would be for us to remand the case to the Board
for a consideration of his ineffective assistance of counsel claim
on the merits. The Board, however, has already examined and
addressed the merits of this claim and determined that the
circumstances do not warrant reopening Onana’s removal proceedings.
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Onana has waived any further review of this determination by
failing to file a petition for review of the Board’s denial of his
motion to reconsider.
Accordingly, we dismiss the petition for review as moot.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DISMISSED
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