Mahender Gurnasinghani v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1945
___________
MAHENDER GURNASINGHANI,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-055-819)
Immigration Judge:Shifra Rubin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 2021
Before: MCKEE, SHWARTZ and MATEY, Circuit Judges
(Opinion filed: December 7, 2021)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Mahender Gurnasinghani, a citizen of India who is proceeding pro se, petitions for
review of a final order of removal issued by the Board of Immigration Appeals (BIA).
For the following reasons, we will deny the petition in part and dismiss it in part.
Gurnasinghani entered the United States in 1981 without being admitted or
paroled. In 2012, the Government charged him with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i). An Immigration Judge in Newark, New Jersey, found Gurnasinghani
removable as charged. The IJ also denied Gurnasinghani’s motion to terminate and
motion to continue the proceedings, which were based on Pereira v. Sessions, 138 S. Ct.
2105 (2018). In that case, the Supreme Court held that a notice to appear that fails to
designate the time and place of removal proceedings, as required by 8 U.S.C.
§ 1229(a)(1)(G)(i), does not trigger the stop-time rule for cancellation of removal cases.
Id. at 2113-14. Gurnasinghani filed a counseled appeal, raising only the Pereira-based
claim. The Board of Immigration Appeals dismissed the appeal, relying on our decision
in Nkomo v. Attorney General, where we refused to extend Pereira’s holding beyond the
stop-time rule context. 930 F.3d 129, 133-34 (3d Cir. 2019), cert. denied, 140 S. Ct.
2740 (2020). Gurnasinghani filed a timely pro se petition for review. 1
We have jurisdiction under 8 U.S.C. § 1252. We review de novo the agency’s
legal determinations, including its application of law to facts. See Herrera-Reyes v. Att’y
Gen., 952 F.3d 101, 106 (3d Cir. 2020). Where the BIA has affirmed the IJ’s denial of a
1
Gurnasinghani filed the petition in the United States Court of Appeals for the Ninth
Circuit. Because the Immigration Court proceeding took place in New Jersey, the Ninth
Circuit transferred the matter, including Gurnasinghani’s pro se brief, to this Court.
2
continuance request, we apply an abuse of discretion standard. See Ponce-Leiva v.
Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003).
The Board properly rejected Gurnasinghani’s reliance on Pereira. As noted above,
the Supreme Court held in Pereira that a notice to appear “that does not specify the ‘time
and place at which the proceedings will be held,’ as required by [8 U.S.C.]
§ 1229(a)(1)(G)(i),” is not capable of triggering the stop-time rule in cancellation of
removal cases. 138 S. Ct. at 2113-14. Gurnasinghani argued that his notice to appear
was defective because it also lacked the time and place information. We have rejected an
attempt to extend Pereira in this manner, however, holding that the lack of a time and
date for a hearing in a notice to appear did not deprive the IJ of jurisdiction. See Nkomo,
930 F.3d at 133-34.
In addition, the Board did not abuse its discretion in affirming the denial of
Gurnasinghani’s request for a continuance. See 8 C.F.R. § 1003.29 (stating that an IJ
may “grant a motion for continuance for good cause shown”); Khan v. Att’y Gen., 448
F.3d 226, 233 (3d Cir. 2006) (noting that the denial of a request for a continuance
“should be reversed only if it is arbitrary, irrational or contrary to law”). Gurnasinghani
sought a continuance based on a case then-pending in this Court, Cruz-Martinez v.
Attorney General, which presented a Pereira claim. But Gurnasinghani cannot
demonstrate that he was prejudiced by the denial of a continuance, see Khan, 448 F.3d at
236, because in Cruz-Martinez we ultimately rejected the same Pereira-based claim that
Gurnasinghani sought to pursue in the continued proceedings. See Cruz-Martinez, 782 F.
App’x 109, 113-14 (3d Cir. 2019) (not precedential).
3
Finally, we note that Gurnasinghani’s pro se brief cites several authorities in
support of his petition for review. For instance, he lists the Life Act, the “NWIRP
settlement,” 2 and the Amnesty Act of 1986. As the Government points out, however,
Gurnasinghani did not raise those issues in his brief to the Board. Gov’t’s Br., 17-19 of
30; see also Administrative Record, at 9-12. Accordingly, we will dismiss the petition
for review in part, as we lack jurisdiction over those claims. 3 See 8 U.S.C. § 1252(d)(1);
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“A petitioner’s failure to exhaust
an issue by presenting it to the BIA deprives us of jurisdiction to consider that issue.”).
For the foregoing reasons, we will dismiss the petition for review in part and deny
it in part.
2
This seemingly refers to Northwest Immigrant Rights Project (NWIRP) v. USCIS, No.
88-379R (W.D. Wash. Sept. 9, 2008), a national class-action lawsuit that involved claims
by individuals who were unable to apply or who were deemed ineligible for legalization
under the Immigration Reform and Control Act (IRCA) because of issues as to whether
their unlawful status was “known to the government.”
3
To the extent that Gurnasinghani raises new claims in his pro se reply brief, we will not
consider them. See Khan v. Att'y Gen., 691 F.3d 488, 495 n.4 (3d Cir. 2012); cf. Hall v.
Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (holding that claims
were forfeited where appellant failed to raise them in her opening brief).
4