Qureshi, Zulfigar v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2009
ZULFIGAR QURESHI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A95-925-176
____________
ARGUED JANUARY 12, 2006—DECIDED MARCH 27, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
BAUER, Circuit Judge. Petitioner Zulfigar Qureshi seeks
review of the March 15, 2005, decision by the Board of
Immigration Appeals (BIA) affirming, without opinion, the
denial of a motion for continuance, the denial of a motion to
terminate proceedings, and the order of removal issued by
the Immigration Judge (IJ) on January 20, 2004. We
dismiss as moot the first request for relief and deny the
other two.
2 No. 05-2009
I. Background
Qureshi entered the United States from Pakistan as
a nonimmigrant visitor on April 26, 1995. Although his
visa expired on October 26, 1995, he remained in the United
States without authorization until the government com-
menced removal proceedings against him. After receiving a
mailed Notice to Appear (NTA) on April 28, 2003, Qureshi
appeared for a hearing on May 20, 2003. At the hearing, the
IJ gave him a copy of the NTA and granted a continuance
until October 24, 2003, so that Qureshi could obtain
counsel.
On October 11, 2003, Qureshi married a U.S. citizen,
Lamonica Dunn. At the October 24, 2003, removal hearing,
Qureshi admitted the factual allegations in the NTA and
conceded removability. He challenged neither the service of
the NTA nor the validity of the certificate of service.
Instead, counsel requested ninety days to investigate
the marriage. The judge continued the hearing until
January 20, 2004. On October 27, 2003, Qureshi’s wife filed
an I-130 visa petition on his behalf, seeking to classify him
as an immediate relative.1
At the January 20, 2004, hearing, Qureshi moved for a
continuance pending adjudication of the I-130 petition by
U.S. Citizenship and Immigration Services (immigration
services). The IJ denied the motion for a continuance.
Qureshi also challenged, for the first time, the immigration
court’s jurisdiction on the basis that the certificate of
service was not dated. After denying this challenge, the
IJ ordered Qureshi removed to Pakistan. The BIA dismissed
Qureshi’s direct appeal and affirmed the IJ’s decision
1
A United States citizen may file an “immediate relative” visa
petition on behalf of an alien spouse to classify the spouse as
a person able to apply for an immigrant visa. 8 U.S.C.
§§ 1154(a), 1151(b)(2)(A)(I).
No. 05-2009 3
without opinion. Qureshi filed this petition for review.
Immigration services denied the I-130 petition on March 17,
2005.
II. Discussion
Qureshi contends that: (1) the IJ erred by denying his
motion for continuance; (2) the IJ lacked jurisdiction to
conduct removal proceedings because of the omission of
the date on the NTA’s certificate of service; and (3) the
BIA violated due process by affirming, without opinion, the
IJ’s decision. When the BIA affirms the IJ’s decision
without opinion, the IJ’s decision becomes that of the
BIA for purposes of judicial review. Georgis v. Ashcroft, 328
F.3d 962, 966-67 (7th Cir. 2003).
A. Continuance Denial
Qureshi contends that the IJ erred by denying his motion
for continuance pending adjudication of the I-130 petition
filed by his wife. According to petitioner, the IJ failed: (1) to
provide a proper hearing on the motion; (2) to apply the
proper standard for adjudicating continuance motions; and
(3) to provide a reasoned explanation, consistent with the
Immigration and Nationality Act, for denying the motion.
The government challenges this Court’s jurisdiction to
entertain these claims, arguing that the IJ’s decision to
grant or deny a continuance is a discretionary action
that we are excluded from reviewing under 8 U.S.C.
§ 1252(a)(2)(B)(ii).
We find it unnecessary to address these claims, however,
because Qureshi’s challenge to the continuance denial has
been rendered moot by immigration services’ dismissal of
the I-130 petition. To qualify for adjudication in federal
court, “an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.”
4 No. 05-2009
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975)). “[I]f an event occurs while a case is pending on
appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the ap-
peal must be dismissed.” Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green,
159 U.S. 651, 653 (1895)). A case “is moot when the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” City of Erie v. Pap’s
A.M., 529 U.S. 277, 287 (2000) (quoting County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979)). After oral
argument in this case, the government moved to dismiss
as moot the part of Qureshi’s petition for review that
challenged the IJ’s continuance denial. We agree.
Even if Qureshi were to prevail on his challenge to the
continuance denial, the relief requested, within our power
to grant, is a remand to the IJ pending adjudication of the
I-130 petition. As we were informed at oral argument, and
as the government’s motion confirms, however, the I-130
petition was denied on March 17, 2005. A remand now
would effectuate no change in the case; Qureshi’s basis for a
continuance no longer exists and the IJ, proceeding with his
earlier analysis, would simply order Qureshi removed from
the United States. Federal courts have no “power to decide
questions that cannot affect the rights of litigants in the
case before them.” North Carolina v. Rice, 404 U.S. 244, 246
(1971) (citing Local No. 8-6, Oil Workers Int’l Union v.
Missouri, 361 U.S. 363, 367 (1960)). Because we are “unable
to grant relief affecting the legal rights of the parties” on
this issue, petitioner’s claim is moot. Davis v. U.S. Dep’t of
Justice, 204 F.3d 723, 727 (7th Cir. 2000).
The petitioner appealed denial of a continuance pending
adjudication of a petition. While the petition for review was
pending, the anticipated adjudication transpired, so that
the relief requested is no longer available and the petition
No. 05-2009 5
for review is necessarily moot. The present matter is
factually analogous to cases where courts have, on mootness
grounds, declined to review petitions seeking a stay of
deportation after the alien had already been removed. See
Patel v. Ashcroft, 378 F.3d 610, 613 (7th Cir. 2004); Hose v.
I.N.S., 180 F.3d 992, 996 (10th Cir. 1999). The situation
here also resembles that of appellate cases outside the
immigration context where denials of continuance and other
motions have been found moot. See Moore v. J.T. Roofing,
Inc., 94 Fed.Appx. 377, 379 (7th Cir. 2004) (affirming
district court’s grant of summary judgment and denial of
outstanding discovery requests as moot); Taft v. Vines, 83
F.3d 681, 684 (3d Cir. 1996) (en banc) (finding that motion
for continuance in order to conduct discovery was moot);
Becker v. I.R.S., 34 F.3d 398, 405-06 (7th Cir. 1994) (affirm-
ing district court’s grant of summary judgment and implicit
denial on mootness grounds of motion for continuance to
proceed with discovery). Here, as in the above cases, the
intervening event “mooted the appeal by eliminating the
stake” that Qureshi had in the continuance motion. Chan v.
Wodnicki, 67 F.3d 137, 140 (7th Cir. 1995).
Qureshi’s counsel conceded at argument that the denial
of the I-130 petition would “take the legs out of some of my
arguments, but not the argument in its entirety.” Qureshi
argues against mootness, in reply to the dismissal motion,
on the basis that he can simply file a new visa petition. This
argument is only effective, however, if Qureshi’s motion for
continuance pending adjudication of the I-130 petition is
interpreted as a motion for continuance until “any and all
such petitions are decided.” Cabalquinto v. I.N.S., 15 F.3d
1083, at *2 (9th Cir. 1994) (unpublished). Nothing in the
record suggests that Qureshi sought, or even contemplated,
such an indefinite continuance. Interpreting Qureshi’s
motion not as it was made, but instead as requiring a
continuance “until any and all petitions a party facing
deportation chooses to bring,” would effectively ensure that
“no one would ever be deported.” Id.6 No. 05-2009
Qureshi also contends that the controversy remains “live”
because he can file an administrative appeal of the denial
of the I-130 petition. This proposition is without merit.
First, Qureshi has made no such appeal. Second, if Qureshi
now attempted to appeal, the BIA would deny the appeal as
time-barred. Under the regulations,
an appeal from a decision of a Service officer shall be
taken by filing a Notice of Appeal to the Board of
Immigration Appeals from a Decision of an INS Officer
(Form EOIR-29) directly with the office of the Service
having administrative control over the record of pro-
ceeding within 30 days of the service of the decision
being appealed.
8 C.F.R. § 1003.3(a)(2). Form EOIR-29 further specifies that
notice of appeal must be filed with immigration services
within thirty calendar days from either the date that notice
was personally served on, or the date that notice was
mailed to, the petitioner. Immigration services denied the
I-130 petition on March 17, 2005. Even if Qureshi was not
served with the decision until the date of oral argument,
January 12, 2006, more than thirty calendar days have
elapsed since personal service.2 To our knowledge, Qureshi
still has not filed an appeal with immigration services.
2
Qureshi alleges misconduct by the Department of Homeland
Security (DHS) in delaying service of immigration services’
decision. All courts have inherent powers, including “the capac-
ity to sanction counsel for . . . ‘bad faith’ conduct.” Schmude
v. Sheahan, 420 F.3d 645, 649-50 (7th Cir. 2005) (quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Any mis-
conduct in this case, however, had no impact on Qureshi’s abil-
ity to appeal the decision because the thirty day period runs
from the date of service of notice on the petitioner instead of
from the date of decision. We decline to issue a rule to show
cause why DHS should not be sanctioned.
No. 05-2009 7
Because any appeal would now be time-barred, we are
powerless to provide the requested relief.
Because it is no longer “possible to ‘fashion some form of
meaningful relief’ to the appellant in the event he prevails
on the merits,” Qureshi’s challenge to the IJ’s continuance
denial is moot. Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir.
1995) (quoting Church of Scientology, 506 U.S. at 12). We
will not reach the merits of Qureshi’s claims of error
concerning the continuance denial, because “the exercise of
judicial power depends upon the existence of a case or
controversy” under Article III. Liner v. Jafco, Inc., 375 U.S.
301, 306 (1964).
B. Immigration Court’s Jurisdiction over Removal
Proceedings
We can, however, provide the alternative relief re-
quested—that the order of removal be vacated and the
removal proceedings terminated. Because this part of
the petition for review challenges the denial of the motion
to terminate proceedings and the IJ’s jurisdiction over
the removal proceedings generally, instead of the con-
tinuance denial, it is not moot. Though some issues be-
come moot on appeal because of an intervening event, we
may review remaining issues that present a viable contro-
versy. See De La Teja v. United States, 321 F.3d 1357, 1364
(11th Cir. 2003); Taft v. Vines, 83 F.3d 681, 684 (3d Cir.
1996) (en banc); Cabalquinto v. I.N.S., 15 F.3d 1083, at *5
(9th Cir. 1994) (unpublished). Qureshi asserts that the IJ
erred by not terminating the proceedings based on the
omitted date on the certificate of service accompanying the
NTA. The BIA’s dismissal of the I-130 petition plainly does
not affect our ability to review this issue. If Qureshi were to
prevail on this challenge, the appropriate relief would be to
vacate the IJ’s removal order and remand with an instruc-
tion to terminate the deportation proceedings. Because we
8 No. 05-2009
remain able to provide meaningful relief, then, the contro-
versy is not moot and we will reach the merits.
Qureshi argues that the IJ did not have jurisdiction to
conduct removal proceedings because the omitted date of
service rendered the NTA insufficient to initiate proceed-
ings against Qureshi. Under the Immigration Court Rules
of Procedure, “[j]urisdiction vests, and proceedings before
an Immigration Judge commence, when a charging docu-
ment is filed with the Immigration Court by the Service.” 8
C.F.R. § 1003.14(a). This requirement is subject to another
regulation, which provides that a “certification showing
service on the opposing party or parties on a date certain
shall accompany any filing with the Immigration Judge
unless service is made on the record during the hearing.” 8
C.F.R. § 1003.32(a). Here, the NTA’s certificate of service
failed to comply with this regulation because it contained no
date of service. Nonetheless, the IJ found, and the BIA
affirmed, that the action properly commenced because the
NTA and certificate of service were admitted without
objection on May 20, 2003, and because Qureshi admitted
the allegations in the NTA and pleaded to the charge on
October 24, 2003.
The IJ did not err in determining that jurisdiction was
proper despite the missing date. This Court has held
a concession of excludability to be “in the nature of a
judicial admission, and such an admission has the effect
of withdrawing an issue from controversy.” Selimi v. I.N.S.,
312 F.3d 854, 860 (7th Cir. 2002). When a petitioner
expressly concedes his removability as charged in the NTA,
he waives any objection to the IJ’s finding of removability,
including the argument that the IJ lacked jurisdiction to
find him removable. Lukarov v. Gonzales, No. 04-9609, 2005
WL 3446580, at *2 (10th Cir. Dec. 16, 2005). Because
Qureshi failed to object to the admission of the NTA,
conceded his removability, and pleaded to the charge in the
NTA, all before claiming that the certificate of service was
No. 05-2009 9
defective, he has waived his challenge to the IJ’s jurisdic-
tion over the removal proceedings.
C. BIA’s Summary Affirmance
In two conclusory sentences in his brief, Qureshi claims
that the BIA’s streamlining provision violates due process.
This claim is without merit. Under the streamlining
provision, the member to whom an appeal is assigned
shall affirm, without opinion, the IJ’s decision if the
member determines that: (1) the result reached in the
decision under review was correct; (2) any errors in the
decision were harmless or nonmaterial; and (3) the issues
on appeal are squarely controlled by existing BIA or federal
court precedent and do not involve a novel fact situation, or
that the issues on appeal are not so substantial as to
warrant the issuance of a written opinion. 8 C.F.R.
§ 1003.1(e)(4). As we have previously held, the BIA’s use of
the streamlining procedure does not violate due process
where the facts of the case present no substantial issue of
law. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003);
see also Albathani v. I.N.S., 318 F.3d 365, 377 (1st Cir.
2003) (holding as a general matter that the streamlining
provision neither violates due process nor renders judicial
review impossible). Additionally, when the BIA affirms the
IJ’s decision without opinion, the IJ’s decision becomes that
of the BIA for purposes of judicial review. Georgis, 328 F.3d
at 966-67. Because we thus have jurisdiction to review the
IJ’s decision, “it makes no practical difference whether the
BIA properly or improperly streamlined review.” Hamdan
v. Gonzales, 425 F.3d 1051, 1058 (7th Cir. 2005).
III. Conclusion
For the foregoing reasons, we DISMISS in part, and DENY
in part, the petition for review.
10 No. 05-2009
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-27-06