Fateh Judhani v. Eric Holder, Jr. , 538 F. App'x 562 ( 2013 )

Case: 12-60909 Document: 00512343727 Page: 1 Date Filed: 08/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2013
No. 12-60909
Summary Calendar Lyle W. Cayce
Clerk
FATEH ALI JUDHANI; NAZLIN JUDHANI; SONIYA FATEH ALI JUDHANI,
Petitioners,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 097 941 195
No. A 097 941 96
No. A 097 941 197
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-60909
Fateh Judhani, his wife Nazlin Judhani, and their adult daughter Soniya
Judhani petition for review of the decision of the Board of Immigration Appeals
(“BIA”), which affirmed the denial, by the immigration judge (“IJ”), of a continu-
ance and of their motion to reopen (which was construed as a motion to remand),
and which dismissed their appeal. The petitioners contend, inter alia, that the
BIA’s affirmance of the IJ’s denial of a continuance should be reversed, because
the decision applied the incorrect legal standard and failed to consider the evi-
dence in support of their claim of ineffective assistance of counsel, depriving
them of due process. Further, the petitioners raise numerous arguments arising
from the BIA’s decision itself denying their motion to remand on the ground that
their claims were not credible.
“A court may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). We may sua sponte raise the exhaustion requirement,
because failure to exhaust deprives the court of jurisdiction. See Said v. Gon-
zales, 488 F.3d 668, 670–71 (5th Cir. 2007); Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004). “A remedy is available as of right if (1) the petitioner could have
argued the claim before the BIA, and (2) the BIA has adequate mechanisms to
address and remedy such a claim.” Omari v. Holder, 562 F.3d 314, 318–19 (5th
Cir. 2009). To exhaust administrative remedies, an alien must raise an issue in
the first instance before the BIA, either on direct appeal, in a motion to reopen,
or in a motion for reconsideration. See Omari, 562 F.3d at 320; Roy, 389 F.3d
at 137.
The petitioners raise issues “stemming from the BIA’s act of decisionmak-
ing” that could not have been raised prior to the BIA’s issuance of its decision.
See Omari, 562 F.3d at 319-21; see also Agholor v. Holder, 454 F. App’x 360,
362–63 (5th Cir. 2011); Argueta-Iglesias v. Holder, 448 F. App’x 496, 497 (5th
Cir. 2011). Those arguments challenge the BIA’s affirmance of the IJ’s denial
of a continuance, the legal standard that the BIA applied, and the lack of consid-
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Case: 12-60909 Document: 00512343727 Page: 3 Date Filed: 08/16/2013
No. 12-60909
eration of the evidence presented in support of their claim of ineffective assis-
tance of counsel and challenge the BIA’s decision denying their motion to
remand. Although the petitioners allege due-process violations, they may not
escape the exhaustion requirement by couching their claims, which could have
been raised in the first instance before the BIA, in terms of due process. See
Goonsuwan v. Ashcroft, 252 F.3d 383, 389-90 (5th Cir. 2001); Roy, 389 F.3d
at 137.
The petitioners were required to raise the issues in a motion for reconsid-
eration in order to satisfy the exhaustion requirement. See Omari, 562 F.3d at
320. Because they did not present those issues to the BIA, the issues are unex-
hausted, and we lack jurisdiction to consider those aspects of the petition for
review. See Roy, 389 F.3d at 137. The petitioners filed a motion to reconsider,
but they did not file a separate petition for review from the BIA’s denial of that
motion, so we lack jurisdiction to consider that motion. See Guevara v. Gonzales,
450 F.3d 173, 176 (5th Cir. 2006); Stone v. INS, 514 U.S. 386, 405 (1995).
To the extent that the petitioners argue that the BIA abused its discretion
in affirming the IJ’s denial of a continuance because they demonstrated good
cause for a continuance, we have jurisdiction to review the denial of a motion for
continuance. See Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). The
denial of a continuance is reviewed for abuse of discretion. Ali v. Gonzales, 440
F.3d 678, 680 (5th Cir. 2006). “An IJ may grant a motion for continuance only
‘for good cause shown.’” Id. (quoting 8 C.F.R. § 1003.29). The petitioners’ specu-
lative and conclusional assertions do not meet that standard.
Accordingly, the petition for review is DENIED in part and is DISMISSED
in part for want of jurisdiction.
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