El Hefnawy v. Attorney General of the United States , 278 F. App'x 176 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-9-2008
El Hefnawy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2895
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 06-2895 and 07-1167
____________
MOHAMED H. EL HEFNAWY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from the
Orders of the Board of Immigration Appeals
(Board No. A96-203-762)
Immigration Judge: Michael W. Straus
____________
Submitted Under Third Circuit LAR 34.1(a)
March 4, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.
(Filed: May 9, 2008 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Mohamed El Hefnawy seeks review of two orders of the Board of Immigration
Appeals (“BIA”) denying his motions to reopen his case. El Hefnawy asserts that his
motions to reopen should be granted for two reasons: he is married to a legal resident
alien who is about to be naturalized, and he was prejudiced by his former attorney’s
ineffective representation. For the reasons that follow, we will dismiss the petitions in
part and deny in part.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
The legal and factual history of this case is convoluted. El Hefnawy entered the
United States with a valid visitor’s visa in 2001. He subsequently began to pursue
residency through the employment-based process. His employer filed a Labor
Certification on his behalf in November 2001. In October 2004, the Department of Labor
rejected the Certification because it was improperly filed.
El Hefnawy married Abir El Haddad, a legal permanent resident, in March 2003
during the pendency of his Labor Certification. El Hefnawy was placed in removal
proceedings in May 2003, and in June 2003, his wife filed on his behalf an I-130 Petition
for Alien Relative and an I-485 application to adjust his status to Permanent Resident.
On June 30, 2005, the removal proceedings culminated in El Hefnawy being
granted a voluntary departure date of October 28, 2005. On October 19, 2005, El
Hefnawy’s attorney filed a motion to reopen based on the fact that El Hefnawy’s wife had
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applied for naturalization. The motion stated: “Upon the approval of Respondent’s
wife’s application, Respondent will have an immediate visa number available and wishes
to then file for Adjustment of Status.”
A properly filed motion would have tolled the voluntary departure date. Kanivets
v. Gonzales, 424 F.3d 330, 335 (3d Cir. 2005). However, El Hefnawy’s attorney failed to
pay the filing fee until November 7, 2005, after the voluntary departure date had passed.
Therefore, the Immigration Judge (“IJ”) denied the motion to reopen because it had been
improperly filed. El Hefnawy, unaware that his attorney had failed to properly file the
motion, remained in the United States. Thus, he became subject to sanctions. See 8
U.S.C. § 1229c(d) (providing that an alien failing to comply with his voluntary date will
be ineligible for adjustment of status for ten years).
El Hefnawy appealed the IJ’s denial of his motion to reopen, and the BIA affirmed
the denial. The BIA stated that El Hefnawy was not prima facie eligible for adjustment of
status because his wife was not yet a U.S. citizen. Represented by new counsel, El
Hefnawy filed a petition for review by this Court.
In addition, in July 2006, El Hefnawy filed a disciplinary complaint against his
former attorney. In September 2006, El Hefnawy filed a second motion to reopen in
accordance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (providing
substantive and procedural requirements for aliens to obtain relief for ineffective
assistance of counsel). In December 2006, the BIA denied the second motion to reopen,
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again stating that El Hefnawy’s wife was not yet a U.S. citizen and therefore El Hefnawy
had failed to show the required prima facie eligibility for relief. El Hefnawy filed a
second petition for review by this Court. The two petitions for review were consolidated
and are now before us.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). In cases where the BIA adopts
the findings of the IJ and discusses some of the bases for the IJ’s decision, we review the
decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
“[W]e review the [BIA’s] denial of a motion to reopen for abuse of discretion.” Fadiga
v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007) (quoting Guo v. Ashcroft, 386 F.3d 556,
562 (3d Cir. 2004)).
III.
In his second motion to reopen before the BIA and in his petition to this Court, El
Hefnawy gives two rationales for granting the relief he requests.
A.
First, El Hefnawy argues that the BIA abused its discretion by failing to consider
that he will soon become eligible for a visa based on his wife’s pending naturalization.
To prevail on a motion to reopen, an alien must “establish a prima facie case for the relief
sought.” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). Each time the BIA denied El
Hefnawy’s motions to reopen, it noted that he was not prima facie eligible for adjustment
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of status because his wife was not a U.S. citizen. El Hefnawy admits that when he filed
his motions to reopen, his wife was not a citizen. Therefore, he was not prima facie
eligible for relief, and it was not an abuse of discretion for the BIA to deny his motions to
reopen. To the extent that El Hefnawy petitions for review on this basis, we will deny the
petitions.
B.
Second, El Hefnawy argues that he should be able to “reclaim” the voluntary
departure date that was lost when his former attorney failed to properly file a motion to
reopen. By arguing that he should be able to “reclaim” his voluntary departure date, El
Hefnawy is effectively asking for a reinstatement and extension of his voluntary departure
date. We lack the power to provide this relief.
We have previously considered the question of whether we have jurisdiction to
reinstate a voluntary departure date, and we have concluded that we do not. Reynoso-
Lopez v. Ashcroft, 369 F.3d 275, 280-82 (3d Cir. 2004). Federal regulations provide:
Authority to extend the time within which to depart voluntarily specified
initially by an immigration judge or the Board is only within the jurisdiction
of the district director, the Deputy Executive Associate Commissioner for
Detention and Removal, or the Director of the Office of Juvenile Affairs.
An immigration judge or the Board may reinstate voluntary departure in a
removal proceeding that has been reopened for a purpose other than solely
making an application for voluntary departure if reopening was granted
prior to the expiration of the original period of voluntary departure.
8 C.F.R. § 1240.26(f). Thus, in Reynoso-Lopez, we determined that “the authority to
reinstate or extend voluntary departure falls solely within the discretion of the Attorney
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General and his delegates at the INS . . . . [T]he executive branch, not the judiciary, is
given the sole authority to determine when an alien must depart.” 369 F.3d at 280.
In addition, we are statutorily deprived of jurisdiction to review “any judgment
regarding the granting of relief under section . . . 1229c [governing the granting of
voluntary departure].” 8 U.S.C. § 1252(a)(2)(B)(i). Since El Hefnawy asked the BIA to
reopen the proceeding so that he could “recapture” his eligibility for voluntary departure,
the BIA’s denial of his motion to reopen is a “judgment regarding the granting of relief
under section . . . 1229c,” and we do not have jurisdiction to review it.
Because we lack the power to reinstate or extend El Hefnawy’s voluntary
departure date, we need not reach his argument that he is eligible for relief under Lozada
due to his attorney’s ineffectiveness. 19 I. & N. Dec. at 637. To the extent that El
Hefnawy petitions for reinstatement and extension of his voluntary departure date, we
will dismiss the petitions for lack of jurisdiction.
IV.
For the foregoing reasons, we will dismiss El Hefnawy’s petitions for review in
part and deny them in part.
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