Tahiraj-Dauti v. Attorney General ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-29-2009
Tahiraj-Dauti v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1925
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-1925
____________
ZAIM TAHIRAJ-DAUTI;
MERITA TAHIRAJ-MAMO,
Petitioners,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A76-821-259 & A76-821-263)
Immigration Judge: Honorable Roger Pauley
____________
Submitted Under Third Circuit LAR 34.1(a)
January 9, 2009
Before: CHAGARES, HARDIMAN, Circuit Judges and ELLIS,* District Judge
(Filed: April 29, 2009)
____________
OPINION OF THE COURT
____________
*
The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
HARDIMAN, Circuit Judge.
Zaim Tahiraj-Dauti and Merita Tahiraj-Mamo, husband and wife, petition for
review of the orders of the Board of Immigration Appeals denying their requests for
reversal of execution of deportation, which were treated as motions to reopen. We will
deny their petitions for review.
I.
Because we write exclusively for the parties, who are familiar with the facts and
proceedings below, we will not revisit them here. We review the BIA’s denial of a
motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324 (1992);
Sevoian v. Ashcroft, 290 F.2d 166, 170-71 (3d Cir. 2002). Such motions are disfavored as
a matter of law, and the alien who seeks to reopen bears a “heavy burden” of proof. INS
v. Abudu, 485 U.S. 94, 110 (1988); see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004) (holding that discretionary decisions of the BIA will not be disturbed unless they
are found to be arbitrary, irrational, or contrary to law).
A.
Tahiraj-Dauti was involuntarily removed from the United States on February 6,
2007. He filed a motion to reopen on February 9, 2007, in spite of a regulation which
provides:
a motion to reopen or a motion to reconsider shall not be made by or on
behalf of a person who is the subject of exclusion, deportation, or removal
proceedings subsequent to his or her departure from the United States. Any
departure from the United States, including the deportation or removal of a
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person who is the subject of exclusion, deportation, or removal proceedings,
occurring after the filing of a motion to reopen or a motion to reconsider,
shall constitute a withdrawal of such motion.
8 C.F.R. § 1003.2(d). Finding § 1003.2(d) a complete bar to Tahiraj-Dauti’s motion to
reopen, the BIA deemed the motion withdrawn consistent with the language of the
regulation. In an effort to avoid the absolute bar of § 1003.2(d), Tahiraj-Dauti argues that
the manner in which he was removed from the United States violated his constitutional
right to due process and should negate the fact that he was not present in the country at
the time his motion to reopen was denied.1 We need not address this issue because the
regulation draws no distinction between voluntary and involuntary departures, and
commands that “[a]ny departure . . . shall constitute a withdrawal of such motion.” 8
C.F.R. § 1003.2(d).
B.
Tahiraj-Mamo was still present in the country at the time her motion to reopen was
denied, and thus she was not barred by 8 C.F.R. § 1003.2(d). Nevertheless, her petition is
entirely derivative of her husband’s claim. Because Tahiraj-Dauti’s claim fails, so too
must Tahiraj-Mamo’s petition for review be denied. See, e.g., Khourassany v. INS, 208
1
Tahiraj-Dauti correctly notes that had he been present in the United States, his
approved I-140 petition could have allowed the BIA to reopen his case and adjust his
status. Unfortunately for Tahiraj-Dauti, the timing of his motion is a complete bar to this
claim.
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F.3d 1096, 1100 (9th Cir. 2000) (holding that if the predicate petition fails, any derivative
action must fail).
C.
Finally, Petitioners argue that they were prevented from fully developing their
claims before the BIA. But Tahiraj-Dauti does not cite any evidence which would vitiate
the application of 8 C.F.R. § 1003.2(d), which we have held is a bar to his motion to
reopen. Nor has Tahiraj-Mamo cited any evidence that her motion to reopen was not
derivative of her husband’s motion. Accordingly, we hold that Petitioners are not entitled
to relief on this ground.
For the foregoing reasons, we will deny the petitions for review.
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