Shahzad v. Attorney General , 258 F. App'x 419 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-12-2007
Shahzad v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2495
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2495
__________
ASIM SHAHZAD,
Petitioner,
vs.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent.
__________
On Petition for Review of Order of the
Board of Immigration Appeals
BIA No. A73-631-918
Immigration Judge: Eugene Pugliese
___________
Submitted on November 28, 2007
___________
Before: BARRY, FUENTES and GARTH, Circuit Judges,
(Opinion Filed: December 12, 2007)
___________
OPINION
___________
GARTH, Circuit Judge:
Asim Shahzad (“Shahzad”) petitions this Court for review of the Board of
Immigration Appeals (“BIA”) order of March 28, 2006, affirming and adopting the
Immigration Judge’s (“IJ”) decision, which denied Shahzad’s motion to reopen to apply
for adjustment of status on the grounds that it was untimely.
We find that the BIA and IJ did not abuse their discretion in denying Shahzad’s
motion to reopen and therefore deny the petition for review.
I. FACTUAL AND PROCEDURAL HISTORY
A native and citizen of Pakistan and born November 16, 1967, Shahzad entered the
United States on April 28, 1996 on a B-2 six-month visa and did not depart as required.
His parents, Mushtaq Ahmed and Niaz Begum, filed separate petitions (Forms I-130) on
his behalf on January 28, 1998. The visa petitions were approved on July 27, 1998 but a
visa did not issue because Shahzad’s parents were only permanent residents then and not
yet naturalized U.S. citizens, and as a result, Shahzad’s petition date did not fall within
the appropriate cut-off date for eligibility.1
After the terrorist attacks of September 11, 2001, the U.S. Government established
the National Security Entry-Exit Registration System, which required men at least 14
years old who were citizens from predominantly Muslim countries (including Pakistan) to
register with the Immigration and Customs Enforcement. When Shahzad voluntarily
1
According to the Visa Bulletin for August 2005, visas were issued to unmarried sons
and daughters of permanent residents with petition dates before January 22, 1996. For
unmarried sons and daughters of U.S. citizens, the applicable date was April 8, 2001. Admin.
Rec. (“A-R”) at 29.
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complied with the registration, on February 4, 2003, the Department of Homeland
Security served him with a Notice to Appear, charging him with removal on grounds of
his overstay. He was detained for two days, but subsequently released on a $2,500 bond.
Shahzad filed an asylum petition, which he subsequently withdrew. On January 11, 2005,
the IJ issued a removal order, but allowed Shahzad until May 11, 2005 to voluntarily
depart the United States. A-R at 135-136.
On August 9, 2005, Shahzad filed a motion to reopen proceedings before the IJ.
He argued that he did not depart voluntarily by May 11, 2005 “[d]ue to a serious medical
condition. . . .” A-R at 123 (“The alien’s failure to depart was caused by a serious illness
which made it dangerous for the alien to fly. The alien suffers from a cerebral
hemorrhage and has been under a doctor’s care for many years. This condition makes
him subject to seizures and periods of unconscious.”). He also noted that he was eligible
for adjustment of status, which would eliminate the basis for his removal, because his
father had become a naturalized U.S. citizen on July 29, 2005 such that his approved visa
petition was made current.
The IJ stated that Shahzad had “not shown that his medical condition is so severe
as to prevent him from leaving the United States.” A-R at 117. The IJ also found that
Shahzad had “not shown exceptional circumstances to excuse his failure to depart. . . .”
Id.
Shahzad filed a timely appeal to the BIA, arguing that the IJ erred in finding that
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his medical condition was not severe enough and that cerebral hemorrhage prevented him
from departing voluntarily. Consequently, Shahzad argued that the IJ should have
granted his motion to reopen and allowed him to apply for adjustment of status on the
basis of his father’s naturalization. A-R at 10-14.
On March 28, 2006, a single-member panel of the BIA affirmed and adopted the
IJ’s decision. The BIA found that Shahzad’s August 9, 2005 motion was filed more than
90 days after the IJ’s initial January 11, 2005 order. The BIA also held that there is no
“exceptional circumstances” provision under 8 U.S.C. § 1229c(d), which bars an alien in
violation of a voluntary departure order from applying for certain forms of discretionary
immigration relief (including cancellation of removal and adjustment of status).
In his petition for review, Shahzad argues that the BIA and the IJ abused their
discretion in denying his motion to reopen because he was eligible to adjust his status on
the basis of his father’s naturalization. The Government responds that the administrative
agencies did not abuse their discretion since Shahzad’s motion to reopen was filed more
than 90 days after the IJ’s initial voluntary departure order.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a)(1), which provides for judicial
review of final orders of removal. See Romanishyn v. Atty. Gen., 455 F.3d 175, 180 (3d
Cir. 2006). Where, as here, the Board adopts the immigration judge’s decision and adds
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its own reasons, this Court reviews both decisions. Fadiga v. Atty. Gen., 488 F.3d 142,
153, n. 16 (3d Cir. 2007). Our standard of review for questions of law is de novo . Id. at
153-54. We review findings of fact for substantial evidence and, therefore, may not set
them aside unless a reasonable fact-finder would be compelled to find to the contrary.
Gabuniya v. Atty. Gen., 463 F.3d 316, 321 (3d Cir. 2006). The denial of a motion to
reopen or reconsider is a discretionary issue, which we review for abuse of discretion.
See Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir. 2002). “Under the abuse of
discretion standard, the Board’s decision must be reversed if it is ‘arbitrary, irrational, or
contrary to law.’” Id. at 174.
III. DISCUSSION
The two questions in this appeal are (1) whether the BIA and IJ abused their
discretion in denying Shahzad’s motion to reopen on grounds that it was untimely and
(2) whether Shahzad is statutorily barred from applying for adjustment of status.
A.
8 U.S.C. § 1229a(c)(7)(C)(i) requires that a “motion to reopen shall be filed
within 90 days of the date of entry of a final administrative order of removal.” A decision
becomes final “upon waiver of appeal or upon expiration of the time to appeal if no
appeal is taken,” whichever comes first. 8 C.F.R. § 1003.39. Since Shahzad waived his
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right to appeal the IJ’s voluntary departure order, the operative start date for the 90-day
period to file the motion to reopen was January 11, 2005.
The relevant dates in this case are not in dispute. Shahzad did not file a motion to
reopen until August 9, 2005. As the BIA and IJ correctly found, this filing date was
clearly more than 90 days after the IJ’s order and therefore Shahzad’s motion was
untimely.
B.
Turning to the issue of whether Shahzad is barred from applying for adjustment of
status, the Government argues that the BIA and IJ correctly found that 8 U.S.C. §
1229c(d)(1)(B) bars him for a period of 10 years from applying for adjustment of status
because Shahzad did not depart the United States by May 11, 2005.
The BIA and the IJ did not abuse their discretion in finding that Shahzad’s
medical condition did not prevent him from voluntarily departing from the United States.
The BIA reasoned that “the likelihood of the respondent suffering a seizure on the
aircraft [wa]s not clear from the doctor’s letter.” A-R at 2. Though the journey would be
potentially difficult, Shahzad’s failure to depart was voluntary. Since 8 U.S.C. §
1229c(d)(1) applies to any alien who “voluntarily fails to depart,” it extends to Shahzad.
While Shahzad has repeatedly argued throughout these proceedings that his medical
condition constitutes exceptional circumstances such that the statute does not apply to
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him, his argument is based on a version of the statute repealed in 1996, as the BIA
correctly noted. See, e.g., Barrios v. Att’y Gen., 399 F.3d 272, 272 (3d Cir. 2005). The
current version of the statute does not provide for such exceptions.
IV. CONCLUSION
In conclusion, we find that the BIA and IJ did not abuse their discretion in denying
Shahzad’s motion to reopen and therefore we deny the petition for review.
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