Ifeyhewen Badidi v. Loretta Lynch , 608 F. App'x 273 ( 2015 )

Case: 14-60155 Document: 00513093820 Page: 1 Date Filed: 06/25/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-60155 June 25, 2015
Summary Calendar
Lyle W. Cayce
Clerk
IFEYHEWEN BADIDI,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A075 854 677
Before JOLLY, HIGGINBOTHAM, and HIGGINSON, Circuit Judges.
Stephen A. Higginson, Circuit Judge: *
Ifeyhewen Badidi petitions for review of a dismissal by the Board of
Immigration Appeals (BIA) of his appeal of an order of removal and the denial
of his motion for continuance. Badidi challenges the determination that he
was removable based upon Immigration and Nationality Act (INA)
§ 237(a)(1)(D)(i) (8 U.S.C. § 1227(a)(1)(D)(i)), as an alien who had his
permanent resident status on a conditional basis terminated. He also contends
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-60155 Document: 00513093820 Page: 2 Date Filed: 06/25/2015
No. 14-60155
that the denial of his motion for continuance was an abuse of discretion by the
BIA and Immigration Judge (IJ). The Respondent has filed a motion for
dismissal for lack of jurisdiction—claiming the petition was untimely—and,
alternatively, for summary denial.
The Respondent contends that this court lacks jurisdiction over this
petition for review because it was not timely filed. A timely petition for review
is a jurisdictional requirement. Navarro-Miranda v. Ashcroft, 330 F.3d 672,
676 (5th Cir. 2003). The BIA’s final order is dated January 27, 2014. Badidi’s
petition was therefore due by February 26, 2014, see 8 U.S.C. § 1252(b)(1), but
was received by this court on February 28, 2014. For petitioners such as Badidi
who are detained at the time of filing, pleadings are considered “timely if
deposited in the institution’s internal mailing system on or before the last day
for filing.” FED. R. APP. P. 25(a)(2)(C); Marmorato v. Holder, 376 F. App’x 380,
382 n.1 (5th Cir. 2010) (applying the mailbox rule to filings by a detained alien).
Because Badidi’s petition was filed within two business days of the due date,
this court will presume, pursuant to the prison mailbox rule, that the pleading
was timely deposited in the prison mail system. See, e.g., United States v.
Young, 966 F.2d 164, 165 (5th Cir. 1992) (presuming notice of appeal was
timely mailed when received two days late); Marmorato, 376 F. App’x at 382
n.1.
Although we reject Respondent’s argument that the petition was not
timely filed, we lack jurisdiction to consider Badidi’s claims regarding the
determination that he is removable under INA § 237(a)(1)(D)(i) (8 U.S.C. §
1227(a)(1)(D)(i)). In this immigration proceeding, Badidi took two appeals to
the BIA. In neither appeal did Badidi present to the BIA the arguments that
he now presents to this court: (1) that improper procedures were followed when
his conditional resident status was terminated; and (2) that the IJ did not
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No. 14-60155
develop the record and adjudicate his I-751 petition to remove conditions on
residence. He therefore failed to administratively exhaust his challenge to the
removal order and this court thus lacks jurisdiction to consider it. See
§ 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (“An alien fails
to exhaust his administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA.”).
We reach the merits of Badidi’s claim that the BIA erred in denying his
request for a continuance pending the appeal of the denial of his I-130 petition.
The BIA determined that the IJ had properly denied Badidi’s continuance
request, given that the United States Citizenship and Immigration Service had
denied the I-130 petition. This determination is in accord with the record,
which indicates that the I-130 petition was denied due to numerous
discrepancies in the couple’s answers to questions designed to establish the
authenticity of their marriage. Badidi’s conclusory assertions regarding this
issue do not establish a likelihood of success in challenging USCIS’s
determination, or that the denial of a continuance was an abuse of discretion.
See, e.g., Ahmed v. Gonzales, 447 F.3d 433, 438-39 n.3 (5th Cir. 2006); Matter
of Hashmi, 24 I & N. Dec. 785, 790 (BIA 2009) (listing factors to be considered
in assessing whether to grant a continuance due to a pending petition).
Badidi’s petition for review is DISMISSED, in part, for lack of
jurisdiction and DENIED, in part. The Respondent’s motion is DENIED.
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