Calixte v. Attorney General ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-11-2007
Calixte v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3250
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3250
MARIO CALIXTE,
Petitioner
v.
ATTORNEY GENERAL of the UNITED STATES,
Respondent
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A75 969 643)
Immigration Judge: Donald V. Ferlise
Transferred pursuant to the REAL ID Act from the
Middle District of Pennsylvania
(Docket No. 03-cv-01685)
Submitted pursuant to Third Circuit LAR 34.1(a)
December 12, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER, District Judge.*
(Filed: January 11, 2007)
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
CHAGARES, Circuit Judge:
Mario Calixte is subject to a final order of removal, and we have previously denied
his petition for review. See Calixte v. Ashcroft, 93 Fed.Appx. 442 (3d Cir. 2004). While
that petition was pending, however, Calixte petitioned for a writ of habeas corpus in the
Middle District of Pennsylvania. After Congress enacted the REAL ID Act, the District
Court converted the case to a petition for review and transferred it to us. See Bonhometre
v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005). Calixte argues that he is now eligible for
permanent residency, and he asks us to grant the petition so that an Immigration Judge
can consider his application for an adjustment of status. See 8 U.S.C. § 1255(a). We
write only for the parties and do not state the facts separately. We read the petition to
challenge the denial of Calixte’s motion to reopen, and deny it because the Board of
Immigration Appeals (“BIA”) did not abuse its discretion.
I.
At the outset, we must address our jurisdiction. The Attorney General argues that
Calixte failed to exhaust his remedies, 8 U.S.C. § 1252(d)(1), and that the petition
impermissibly challenges the decision to execute a final order of removal, 8 U.S.C. §
1252(g). Both of these arguments presuppose that Calixte “has not challenged the
[BIA’s] denial of his motion to reopen.” See Atty. Gen. Br. at 12.
We agree with the Attorney General that Calixte’s brief is not a model of clarity.
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It contains one paragraph of argument, and it never explicitly mentions the BIA’s denial
of the motion to reopen. Nonetheless, the brief does contain a veiled reference to the
BIA’s “refusal to adjudicate” Calixte’s application, and the motion to reopen is the only
basis in law for this petition. We will therefore construe this second petition as a
challenge to the BIA’s denial of the motion to reopen. We have jurisdiction to review
that determination. See Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).
II.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Lu v.
Ashcroft, 259 F.3d 127, 131 (3d Cir.2001). We may grant the petition only if the denial
was “arbitrary, irrational, or contrary to law.” Caushi v. Attorney General, 436 F.3d 220,
226 (3d Cir. 2006) (internal quotation omitted). The BIA determined that Calixte had
failed to demonstrate prima facie eligibility for an adjustment of status. Because Calixte
did not have an immigrant visa available to him at the time of the BIA’s decision, that
determination was not an abuse of discretion. See 8 U.S.C. § 1255(a). Accordingly, we
must deny the petition for review.
3