Johar v. Attorney General of the United States , 217 F. App'x 140 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-8-2007
Johar v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2223
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"Johar v. Atty Gen USA" (2007). 2007 Decisions. Paper 1641.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2223
________________
JITENDER SINGH JOHAR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A75-363-913)
Immigration Judge: Henry Dogin
Submitted Under Third Circuit LAR 34.1(a)
February 7, 2007
Before: Judges Rendell, Van Antwerpen and Cowen, Circuit Judges.
(Filed February 8, 2007)
_______________________
OPINION
_______________________
PER CURIAM
I.
Jitender Singh Johar, a Sikh and citizen of India, entered the United States in 1995.
By way of a Notice to Appear issued in January 1998, Johar conceded his removability
for having stayed beyond the period authorized and the Immigration Judge denied his
application for asylum and withholding of removal. The Board of Immigration Appeals
(“BIA”) dismissed Johar’s appeal. In 2002, the BIA denied Johar’s motion to reopen the
proceedings. In 2005, the BIA denied Johar’s second motion to reopen as time and
number barred. In February 2006, Johar filed a third motion to reopen, seeking a remand
to the Immigration Judge for adjustment of status based on his approved I-140 petition for
alien worker. The BIA denied the motion as number barred under 8 C.F.R. §
1003.2(c)(2). Johar filed this timely pro se petition for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(5). The only issue before us
is the BIA’s February 2006 order denying Johar’s third motion to reopen. See 8 U.S.C. §
1252(b)(1) (requiring a petition for review to be filed within thirty days of the BIA’s
order). We review the BIA’s denial of a motion to reopen for abuse of discretion,
whereby we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary
to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
A petitioner is generally limited to filing one motion to reopen. See 8 C.F.R. §
1003.2(c)(2). Johar filed two previous motions to reopen, and thus is numerically barred
from filing another motion unless he satisfies one of the exceptions to the regulation. See
id. Johar’s pending application for adjustment of status does not provide an exception to
the one motion rule. See Bhiski v. Ashcroft, 373 F.3d 363, 371 (3d Cir. 2004)
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(recognizing that pursuant to In re Velarde-Pacheco, 23 I & N. Dec. 253 (BIA 2002), a
motion to reopen for adjustment of status may not be granted if, inter alia, the motion is
numerically barred). To the extent Johar is seeking to re-litigate his asylum and
withholding of removal claims, he does not provide any evidence of changed
circumstances in India, and thus does not satisfy the exception for a change in
circumstances arising in the country to which deportation has been ordered. See 8 C.F.R.
§ 1003.2(c)(3)(ii). The other exceptions to the numerical bar set forth in the regulations
are clearly not applicable. See 8 C.F.R. § 1003.2(c)(3).
Accordingly, the BIA did not abuse its discretion in denying the motion to reopen.
We will therefore deny the petition for review.
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