Randhawa v. Gonzales ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0394n.06
Filed: June 7, 2006
No. 04-4006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MUNROOP RANDHAWA, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE UNITED
) STATES BOARD OF IMMIGRATION
) APPEALS
ALBERTO R. GONZALES, Attorney General, )
) OPINION
Respondent-Appellee. )
)
BEFORE: NORRIS and BATCHELDER, Circuit Judges; RICE, District Judge.*
PER CURIAM. Petitioner Munroop Randhawa appeals the decision of the Board of
Immigration Appeals (“BIA”) denying her untimely motion to reopen immigration proceedings
removing her from the country. Petitioner’s status as a conditional permanent resident was
terminated because her marriage to a United States citizen was annulled within two years of her
admission to the country. 8 U.S.C. § 1186a(a)(1) and (b)(1)(A)(ii); 8 U.S.C. § 1227(a)(1)(G). The
BIA subsequently ruled, and this court affirmed, Randhawa v. Ashcroft, No. 02-4347, 2005 WL
221502 (6th Cir. Jan. 31, 2005), that petitioner was not entitled to a “hardship waiver” of the
requirement that an alien apply jointly with the citizen spouse to remove the condition on permanent
residence. 8 U.S.C. § 1186a(c)(1) and (c)(4). Upon appeal of the BIA’s denial of her subsequent
motion to reopen, she argues that the BIA should have exercised its discretion to reopen proceedings
*
The Honorable Walter Herbert Rice, United States District Court Judge for the Southern District of Ohio,
sitting by designation.
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No. 04-4006
sua sponte due to exceptional circumstances, or, alternatively, should have equitably tolled the
limitations period.
On October 31, 2002, the BIA summarily affirmed the immigration judge’s denial of the
hardship waiver based upon her finding that petitioner’s testimony regarding the marriage was not
credible. On June 23, 2004, petitioner asked the BIA to reopen the proceedings sua sponte in light
of new polygraph evidence which she contended established that she was truthful in stating that her
marriage was not entered into for the fraudulent purpose of obtaining a visa. The BIA denied the
motion because it was filed more than ninety days after the final administrative decision, 8 C.F.R.
§ 1003.2(c)(2), and declined to reopen the proceedings.
This court has held that “[t]he decision whether to invoke sua sponte authority is committed
to the unfettered discretion of the BIA” and is not subject to judicial review. Harchenko v. INS, 379
F.3d 405, 410-11 (6th Cir. 2004) (citing Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999)). Harchenko
affirmed the principle that “review is not to be had if the statute is drawn so that a court would have
no meaningful standard against which to judge the agency’s exercise of discretion.” Id. at 411
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). Hence, we lack jurisdiction to review the
BIA’s decision not to reopen the proceedings sua sponte.
We also do not have jurisdiction over petitioner’s equitable tolling claim since she did not
raise it before the BIA in her motion to reopen. In Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir.
2005), we held that, “in an appeal from an order of removal, we have jurisdiction to review only
those claims as to which the alien has exhausted his administrative remedies, that is, those claims
‘properly presented to the BIA and considered on their merits.’” Id. (quoting Ramani v. Ashcroft,
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378 F.3d 554, 560 (6th Cir. 2004)); see 8 U.S.C. § 1252(d)(1). Where, as here, a petitioner has
failed to exhaust her administrative remedies, we are “without jurisdiction to consider [her] petition
for review.” Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994).
The petition for review is denied.
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