Calikiran v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-30-2008
Calikiran v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1248
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-1248
____________
ISMET CALIKIRAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A70-897-895)
Immigration Judge: Henry S. Dogin
____________
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges.
(Filed: April 30, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Ismet Calikiran petitions for review of the decision by the Board of Immigration
Appeals (“BIA”) dismissing his appeal and affirming the decision of the Immigration
Judge (“IJ”) denying his motion to reopen. For the reasons that follow, we will deny his
petition.
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.
Calikiran is a native and citizen of Turkey. On September 5, 1996, because he had
remained in the United States after the expiration of his nonimmigrant visa, deportation
proceedings were commenced against him pursuant to former Immigration & Nationality
Act (“INA”) § 241(a)(1)(B).1 On August 28, 1996, Calikiran received an Order to Show
Cause that included a deportation hearing notice instructing him to appear on March 14,
1997 before an IJ. The hearing notice explained the consequences of any failure to
appear. Nevertheless, Calikiran failed to appear at his hearing and the IJ issued an order
that he be “removed in absentia.”
On July 9, 2003, Calikiran filed his first motion to reopen, requesting that the IJ
vacate the removal order and reopen the case based upon Calikiran’s marriage to an
approved immigrant alien worker. In support of his motion, he included a medical note
indicating that on March 12, 1997, he was examined for possible peptic ulcer disease. On
1
This subsection was moved to U.S.C. § 1227(a)(1)(B) by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), § 305(a)(2), Pub. L. No.
104-208, 110 Stat. 3009.
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July 18, 2003, the IJ denied Calikiran’s motion because it had not been filed within the
180-day period prescribed by the statute and because he failed to demonstrate exceptional
circumstances for his failure to appear at the original hearing. On May 13, 2004, the BIA
affirmed the IJ’s decision without opinion. Calikiran did not petition for review of that
decision.
On October 16, 2006, Calikiran filed a second motion to reopen in which he
argued that he had demonstrated “reasonable cause” for his failure to appear at his
original hearing in 1997, and thus met his burden. On December 28, 2006, the BIA
denied this second motion to reopen as number-barred. The Board also found that even if
his motion to reopen was not statutorily barred, it was without merit. This petition for
review followed.
II.
We have jurisdiction to review petitions challenging a final order of removal under
8 U.S.C. § 1252(a). In cases where the BIA adopts the findings of the IJ and discusses
the basis 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). We review an IJ’s denial of a motion to
reopen under an abuse of discretion standard. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d
Cir. 2004). We will disturb the BIA’s denial of a motion to reopen only if it was
“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004).
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III.
Petitioner’s in absentia hearing was conducted pursuant to former INA § 242B.
(A.R. 2; Petitioner’s Br. 8; Government’s Br. 8). That section states that an order of
removal pursuant to § 242B can only be rescinded in one of two ways:
(A) upon a motion to reopen filed within 180 days after the date of the order
of deportation if the alien demonstrates that the failure to appear was
because of exceptional circumstances (as defined in subsection (f)(2) of this
section), or
(B) upon a motion to reopen filed at any time if the alien demonstrates that
the alien did not receive notice in accordance with subsection (a)(2) of this
section or the alien demonstrates that the alien was in Federal or State
custody and did not appear through no fault of the alien.
INA § 242B(c)(3).
Petitioner argues that his first motion to reopen – filed six years after the final
order of removal – was not time-barred and that his failure to attend his hearing was due
to his medical condition. However, after the IJ’s denial of the motion was affirmed by the
BIA, Petitioner did not file a petition for review before this Court. Instead, he filed a
second motion to reopen more than two years later.
INA § 242B(c)(4) states that any petition for review challenging a final order
issued pursuant to an order of deportation in absentia must be filed “not later than 60
days” after the date of the final order. As no petition was filed within 60 days of the final
order denying the first motion to reopen, we do not have jurisdiction to review the denial
of the first motion to reopen. See Nocon v. I.N.S., 789 F.2d 1028, 1033 (3d Cir. 1986)
4
(finding a petition for review must be filed with the statutory time limit given for “the
specific order sought to be reviewed” and that “strict compliance with the statutory
directive is a jurisdictional prerequisite to judicial review.”).
Turning to Petitioner’s second motion to reopen, for which the petition has been
timely filed, the Government argues that this motion is nonetheless number-barred. The
Government relies primarily on 8 C.F.R. § 1003.2, which states that “except as provided
in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation
or exclusion proceedings.” Id.However, our case law is clear that
[u]nder the statute that applies to pre-IIRIRA proceedings, 8 U.S.C.
§ 1252b [INA § 242B], there is no limit on the number of motions to reopen
that an alien may file. . . . The old statute continues to apply to aliens who
were placed in proceedings before April 1, 1997, the effective date of
IIRIRA. . . . The BIA has also promulgated regulations that apply to aliens
placed in proceedings before April 1, 1997. Under these regulations, an
alien who is ordered deported in absentia may file an unlimited number of
motions to reopen.
Luntungan v. Att’y Gen., 449 F.3d 551, 556 (3d Cir. 2006). Because proceedings against
Petitioner commenced in 1996, under Luntungan, his second motion is not number-
barred. See id.Regardless, Petitioner’s second motion to reopen is untimely. Petitioner has not
alleged that he did not receive notice, or was in government custody at the time of the
hearing. Therefore, INA § 242B(c)(3)(B) does not apply. Petitioner alleges that his
medical condition caused him to miss the hearing. According to INA § 242B(c)(3)(A),
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the exception for such circumstances applies only in those cases when the motion is filed
within 180 days of the date of the order. As Petitioner filed this second motion well after
the 180 day period expired, his claim is time-barred, the merits of his allegations
notwithstanding.
IV.
For the foregoing reasons, we will deny the petition for review.
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