Mozammal Hoque v. Attorney General United States , 574 F. App'x 133 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1331
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MOZAMMAL HOQUE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A073-048-883)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 16, 2014
Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges
(Opinion filed: July 17, 2014)
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O P I NI O N
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PER CURIAM
Mozammal Hoque petitions for review of the Board of Immigration Appeals’
(“BIA”) decision declining to reopen his removal proceedings sua sponte. For the
reasons that follow, we will dismiss the petition in part and deny it in part.
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I.
Because we write primarily for the parties, who are familiar with the background
of this case, we discuss that background only briefly here. Hoque is a citizen of
Bangladesh who entered the United States in 1993. Removal proceedings were initiated
against him in 1999, but those proceedings were administratively closed in 2003. In
2011, the Department of Homeland Security (“DHS”) successfully moved to recalendar
the proceedings and change venue from New York, New York, to York, Pennsylvania.
DHS then filed an additional charge of removability — the original charge was for being
present in the United States without having been admitted or paroled, see 8 U.S.C.
§ 1182(a)(6)(A)(i) — asserting that he had been convicted of a crime involving moral
turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Hoque conceded the original charge of removability and the Immigration Judge
(“IJ”) sustained the added charge. Hoque then applied for asylum, withholding of
removal, and relief under the Convention Against Torture. The IJ denied that application
and the BIA dismissed his appeal. Hoque did not petition for review of that dismissal.
Thereafter, in July 2013, Hoque married Zarzina Tanvir, a lawful permanent
resident of the United States and the mother of his two United States citizen children.
The following month, Tanvir filed an I-130 Petition for Alien Relative on Hoque’s behalf
with United States Citizenship and Immigration Services. With that petition pending,
Hoque moved the BIA to reopen his removal proceedings so that he could seek
adjustment of status. On January 16, 2014, the BIA denied the motion, concluding that it
was untimely, and “declin[ing] to exercise [its] discretionary authority to reopen and
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remand or terminate these proceedings sua sponte.” (A.R. at 3.) In reaching this
conclusion, the BIA noted that Hoque did not appear to be prima facie eligible for
adjustment of status because the IJ’s finding that Hoque had been convicted of a crime
involving moral turpitude rendered him inadmissible to the United States. The BIA
continued:
And even if [Hoque] is not so inadmissible, or is eligible for a
waiver of such inadmissibility, becoming eligible or
potentially eligible for relief after a final administrative order
has been entered is common and does not, in itself, constitute
an exceptional circumstance warranting consideration of an
untimely motion to reopen. While we acknowledge that
[Hoque’s] removal to Bangladesh may result in hardship to
his lawful permanent resident spouse and two United States
citizen children, we do not find exceptional circumstances in
this case that would warrant sua sponte reopening of these
proceedings.
(Id.)
Hoque now seeks review of the BIA’s denial of sua sponte reopening. The
Government argues that this denial is unreviewable and that the petition for review
should be dismissed for lack of jurisdiction.
II.
Because a motion for sua sponte reopening is “committed to the unfettered
discretion of the BIA,” Pllumi v. Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011), we
generally lack jurisdiction to review the BIA’s denial of such a motion, id. at 160. That
said, “we may exercise jurisdiction to the limited extent of recognizing when the BIA has
relied on an incorrect legal premise.” Id. We also have jurisdiction to review
constitutional claims. See 8 U.S.C. § 1252(a)(2)(D).
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Here, Hoque argues that the BIA “made a fundamental misapprehension of law”
when it concluded that he did not appear to be prima facie eligible for adjustment of
status. (Pet’r’s Br. 12.) He also claims that the BIA “did not fully consider the record as
a whole.” (Id. at 13.) If the BIA’s denial of sua sponte reopening had hinged on its legal
determination about Hoque’s eligibility for adjustment of status, we would have
jurisdiction to review that denial. See Pllumi, 642 F.3d at 160. But that was not actually
the case. The BIA made it clear that, regardless of whether he was eligible for
adjustment of status, there were no exceptional circumstances warranting sua sponte
reopening of his case. In reaching this conclusion, the BIA did not rely on a legal
premise or articulate some meaningful standard; rather, we read its opinion as simply
exercising its unfettered discretion. We lack jurisdiction over that exercise of discretion.
See id. at 159. Although we retain jurisdiction over Hoque’s argument that the BIA
failed to consider the entire record — at least to the extent that this argument presents a
due process challenge — there is no indication that the BIA actually failed to consider the
entire record in making its decision. Hoque focuses on the BIA’s use of the phrase
“[a]nd even if,” but we are at a loss as to how that demonstrates that the BIA failed to
consider the entire record.
In light of the above, we will dismiss the petition in part and deny it in part.
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