Ragab v. Ashcroft ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2327
ABDEL RAGAB,
Petitioner,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Howard, Circuit Judges,
and Stearns,* District Judge.
Mario Bozza, on brief, for petitioner.
Hugh G. Mullane, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, with whom Peter D. Keisler,
Assistant Attorney General and Francis W. Fraser, Senior Litigation
Counsel, were on brief, for respondent.
June 30, 2004
*
Of the District of Massachusetts, sitting by designation.
Per Curiam. Petitioner Abdel Hakim Moustafa El Desouky
Ragab ("petitioner") appeals from the decision of the Board of
Immigration Appeals's ("BIA") to deny his motion to reopen.
Finding no abuse of discretion in the BIA's order, we affirm.
Petitioner is a native and citizen of Egypt. He was
admitted into the United States on July 16, 2000 as a crewman for
a temporary period -- no longer than 29 days -- and remained in the
United States beyond that period without further authorization.
The Immigration and Naturalization Service ("INS")1 issued a notice
to appear charging him with removability. Petitioner appeared
before an Immigration Judge on December 11, 2001.2
At the hearing, counsel indicated that on April 30, 2001,
the Brushworks Company filed an application for labor certification
on petitioner's behalf with the Massachusetts Department of Labor.
Petitioner argued to the Immigration Judge, that based on the
application, he was eligible for adjustment of status under 8
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
(BICE). For simplicity, we refer to the agency throughout this
opinion as the INS.
2
At petitioner's second hearing, held on July 13, 2001, the
Immigration Judge asked petitioner if he had any fear of returning
to Egypt, the designated country of removal. Petitioner reaffirmed
the answer he had given at an earlier hearing on July 10, 2001; he
had no fear of returning to Egypt. Therefore, any claims for
asylum, withholding of removal, and relief under the Convention
Against Torture were deemed abandoned.
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U.S.C. § 1255(i);3 if he was so eligible, he would then be a
candidate for permanent residence. After consulting counsel for
the INS and for petitioner, the Immigration Judge concluded that
petitioner was not eligible for adjustment of status, but granted
petitioner's request for voluntary departure in lieu of removal.
Petitioner appealed to the BIA on December 21, 2001; he
claimed that the Immigration Judge erred by denying him adjustment
of status, or in the alternative, a continuance to seek adjustment
of status. The BIA affirmed without opinion on May 8, 2003. On
May 30, 2003, petitioner filed a motion to reopen before the BIA,
arguing that his visa petition filed on May 5, 2003 was pending
and, if granted, he was planning to seek adjustment of status.
3
This statute states in relevant part:
(1) Notwithstanding the provisions of subsections (a) and (c)
of this section, an alien physically present in the United
States --
(A) who --
(i) entered the United States without inspection
. . . [and] . . .
(B) who is the beneficiary . . . of . . .
(ii) an application for a labor certification under
section 1182(a)(5)(A) of this title that was filed
pursuant to the regulations of the Secretary of
Labor on or before [April 30, 2001]; and
(C) who, in the case of a beneficiary of . . . an
application for labor certification, described in
subparagraph (B) that was filed after January 14,
1998, is physically present in the United States on
December 21, 2000;
may apply to the Attorney General for the adjustment of his or
her status to that of an alien lawfully admitted for permanent
residence.
8 U.S.C. § 1255(i)(1).
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The motion to reopen was denied on August 27, 2003. The
BIA noted that while crewmen are generally prohibited from
adjusting their status, they may do so "if they meet the
requirements of section 245(i) [codified at 8 U.S.C. § 1255(i)] of
the [Immigration and Nationality] Act, and of 8 C.F.R. § 1245.10. . . ." The BIA further stated that petitioner may be
'grandfathered' into eligibility because his application for a
labor certification was filed before April 30, 2001. See 8 C.F.R.
§ 1245.10 (a)(1)(B). Nevertheless, the BIA determined that the
information submitted by petitioner showed that his visa
application was filed on May 5, 2003, with no indication that it
had ever been approved. Therefore, the BIA could not adjust his
status as the beneficiary of an approved visa petition. See 8
U.S.C. § 1255(i)(2). Petitioner appeals this decision.4
The government argues that we have no jurisdiction over
the initial BIA affirmance of the Immigration Judge's decision
determining the issue of adjustment of status because the
petitioner appealed only from the denial of the motion to reopen.
Under the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, all final BIA orders must be appealed to this court
4
A further motion to reopen was filed on October 6, 2003. No
disposition appears in the administrative record. According to the
government's brief, it was denied on February 6, 2004.
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within thirty days. See 8 U.S.C. § 1252(b)(1).5 A timely appeal
is a strict jurisdictional requirement. See Nascimento v. INS, 274
F.3d 26, 28 (1st Cir. 2001); see also Sankarapillai v. Ashcroft,
330 F.3d 1004, 1005-06 (7th Cir. 2003) (collecting cases). The
period in which to appeal BIA orders continues to run despite
petitioner's motions to reopen and reconsider; such motions are
appealed separately. See Stone v. INS, 514 U.S. 386, 405-06
(1995)(holding that filing motions for reconsideration does not
toll or enlarge the time allowed for seeking judicial review). The
petition for review in this appeal was filed on September 26, 2003.
Therefore, we have no jurisdiction to hear an appeal from the BIA's
affirmance without opinion issued on May 8, 2003. We do, however,
have jurisdiction to hear the appeal from the August 27, 2003 BIA
decision denying the motion to reopen.
"Motions to reopen are disfavored in deportation
proceedings because of the strong public interest in bringing
litigation to a close." Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st
Cir. 2003)(internal quotations and citations omitted). Two
threshold requirements must be met to prevail on a motion to
reopen: "it [must] establish a prima facie case for the underlying
substantive relief sought and . . . it [must] introduce previously
5
"The petition for review must be filed not later than 30 days
after the date of the final order of removal." 8 U.S.C. § 1252(b)(1).
-5-
unavailable, material evidence." Id. (internal quotations and
citations omitted). We review for abuse of discretion. Id.Petitioner has not made a prima facie case for the
underlying relief. The BIA recognized that petitioner may have
been eligible for adjustment as a beneficiary of the
"grandfathering" provision under Section 245(i) of the INA by
filing an application for labor certification on or before
April 30, 2001.
Petitioner does not currently meet the second statutory
requirement for adjustment of status, however, which states that
"[u]pon receipt of such [a labor certification] application . . .,
the Attorney General may adjust the status of the alien . . . if --
(A) the alien is eligible to receive an immigrant visa . . .; and
(B) an immigrant visa is immediately available to the alien at the
time the application is filed." 8 U.S.C. § 1255(i)(2) (emphasis
supplied). The regulations define the term "immediately available"
as:
(1) Availability of immigrant visas under [8
U.S.C. § 1255] . . . . If the applicant is a
preference alien, the current Department of
State Bureau of Consular Affairs Visa Bulletin
will be consulted to determine whether an
immigrant visa is immediately available. An
immigrant visa is considered available for
accepting and processing the application Form
I-485 [for adjustment of status] if the
preference category application has a priority
date on the waiting list which is earlier than
the date shown in the Bulletin (or the
Bulletin shows that numbers for visa
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applicants in his or her category are
current).
8 C.F.R. § 245.1(g)(1).
The BIA held that
the information submitted . . . in connection
with this motion indicates only that the
[Department of Homeland Security] received a
visa petition filed on [petitioner's] behalf
on May 5, 2003. We have received no
information that the visa petition has been
approved. Accordingly, the respondent is
currently not eligible to adjust his status as
he is not the beneficiary of an approved visa
petition, and thus he does not have a visa
immediately available to him. [8 U.S.C.
§ 1255(i)(2)(A)]. As the respondent is not
currently eligible for the relief he seeks his
motion must be denied.
Petitioner, nevertheless, argues that he was entitled to a
continuance by virtue of the pending employment visa petition, the
approval of which would entitle him to adjustment of status.
In Hernández v. Ashcroft, 345 F.3d 824, 841-42 (9th Cir.
2003), the INS argued that in order to qualify for adjustment of
status the petitioner must show that a visa had been approved on
her behalf. The Ninth Circuit stated that, assuming arguendo this
was the applicable rule, Hernández had made a showing that she was
the beneficiary of an immediately available visa because her
application had been approved and she was given a priority date.
Id. Hernández's application had been processed and she was
eligible under the second family preference category. Id.; see 8
U.S.C. § 1153(a)(2)(A).
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In contrast, petitioner here has provided no information,
other than the INS's receipt of his I-140 visa application, to show
that a visa was immediately available to him. Since petitioner is
a preference alien under the employment preference categories, his
visa is not considered immediately available until he has a
priority date on the waiting list which is earlier than the date
shown on the Department of State Bulletin as specified in 8 C.F.R.
§ 245.1(g)(1). Petitioner has made no showing that his Form I-140
had been approved or that he was allocated a priority date. See 8
C.F.R. § 245.1(g)(2).
Because petitioner was not eligible for adjustment of
status under the statute, the BIA did not commit an error of law on
the substantive issue. See Lasprilla v. Ashcroft, 365 F.3d 98, 101
(1st Cir. 2004)(stating that a motion to reconsider was properly
denied when petitioner failed to show that he qualified for
adjustment of status under the 'grandfathering' provision). We can
discern no abuse of discretion and therefore affirm.
Affirmed.
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