Nour v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-28-2006
Nour v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4635
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-4635
____________
REDA ELSAYED NOUR,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A74 988 980)
Immigration Judge: Donald Vincent Ferlise
____________
Submitted Under Third Circuit LAR 34.1(a)
December 11, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
(Filed: December 28, 2006)
OPINION OF THE COURT
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.
Reda Elsayed Nour appeals from a decision of the Board of Immigration Appeals
(“BIA”) denying his motion to remand and affirming the decision of the Immigration
Judge (“IJ”). For the reasons set forth below, we will affirm.
I.
Nour is a native and citizen of Egypt who entered the United States on a B-1
visitor’s visa in 1988. Nour entered removal proceedings for overstaying his visa and for
misrepresenting a material fact for purposes of obtaining an immigration benefit. In a
thorough opinion, the IJ found that he had overstayed his visa and that he had lied on his
I-485 adjustment of status application when he represented that he had never been
arrested and that he had no prior marriages or children. In fact, Nour had been arrested
twice for drug-related felonies and had an ex-wife and two children in Egypt. The IJ
found that Nour’s testimony lacked credibility, specifically his explanation that his wife
had filled out the I-485, that he did not understand the difference between arrests and
convictions, and that he thought the question about children did not include children born
overseas.
Based on the finding that Nour had overstayed his visa and the finding that Nour
sought to procure adjustment of status through fraud, the IJ ordered Nour removed to
Egypt. He also denied Nour’s request for voluntary departure, finding that Nour had
“obviously” lied to the court under oath and “lacks good moral character for his false
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testimony under oath.” The lack of good moral character made Nour statutorily ineligible
for voluntary departure.
Nour filed a notice of appeal with the BIA, specifying five errors by the IJ.
Although he indicated on his notice of appeal that he planned to file a brief, he did not do
so, filing instead a motion to remand to the IJ, indicating that the Department of
Homeland Security (“DHS”) had scheduled an interview with him to adjudicate an I-130
immediate relative petition. The DHS responded in opposition to the motion to remand,
arguing that because adjustment of status was discretionary and because the IJ had
previously found that Nour lacked good moral character, his status would not be adjusted.
The BIA concurred and denied Nour’s motion to remand and summarily affirmed the IJ’s
decision finding Nour removable. Nour timely filed this appeal.1
II.
Before we can address the substance of Nour’s appeal, we must satisfy ourselves
that we have jurisdiction. Pursuant to 8 U.S.C. § 1252(d)(1), we may only review a final
order of removal if an alien has exhausted all administrative remedies. Failure to exhaust
administrative remedies is a jurisdictional bar to review. Duvall v. Elwood, 336 F.3d 228,
232 (3d Cir. 2003). In its brief, the government argues that we lack jurisdiction over
Nour’s appeal because he failed to exhaust administrative remedies when he did not file a
brief in support of his appeal to the BIA. However, we have explicitly held that the
1
The government responded to Nour’s appeal with a motion for summary
affirmance. That motion has been dealt with in a separate order.
3
failure to file a brief with the BIA does not foreclose our review. Bhiski v. Ashcroft, 373
F.3d 363, 368-69 (3d Cir. 2004). So long as the notice of appeal is “sufficient to make
the BIA aware of precisely what issues [are] being appealed,” we may exercise
jurisdiction over an alien’s appeal. Id. at 368. Nour’s notice of appeal claimed four
separate errors regarding the sufficiency of the evidence and one regarding a credibility
determination. Each claim included a detailed description of a particular piece of
evidence that supported Nour’s position. These specific reasons were sufficient to
apprise the BIA of the particularized bases for Nour’s appeal and provide us with
jurisdiction. Id.2
We also have jurisdiction over Nour’s appeal from the BIA’s dismissal of his
motion to remand. The denial of a motion to remand is a final order and is, therefore,
reviewable. See Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir. 2002) (finding a motion
to reopen reviewable as a final order of deportation).3
2
The BIA itself seems to agree that Nour sufficiently specified his grounds for
appeal. In its brief opinion denying Nour’s motion to remand, the BIA stated “We further
affirm the Immigration Judge’s decision rendered on December 22, 2003,” indicating not
a dismissal, but an acceptance of the appeal and an affirmation.
3
As they are “functionally equivalent,” we treat motions to remand and motions to
reopen the same for purposes of jurisdiction and standard of review. Korytnyuk v.
Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005).
4
III.
Nour’s claim that the IJ erred when he found that Nour was removable for making
misrepresentations on an adjustment of status application is without merit. We review an
IJ’s findings of fact for substantial evidence, asking whether such determinations are
supported “‘by evidence that a reasonable mind would find adequate.’” Shah v. Attorney
General, 446 F.3d 429, 434 (3d Cir. 2006) (quoting Dia v. Ashcroft, 353 F.3d 228, 249
(3d Cir. 2003) (en banc)).4 We will reverse only where the evidence compels a
conclusion to the contrary. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). The
evidence presented to the IJ was sufficient to support his finding that Nour made material
misrepresentations on his adjustment of status form. The IJ determined that Nour had
signed the form, indicating that he knew the contents of the application, which were
clearly not true. Further, the IJ credited the testimony of the government’s witness who
testified that, as was his habit, he would have asked Nour about his prior criminal history
and his family history. The evidence in the record provides substantial support for the
IJ’s determination that Nour was aware of the meaning of the I-485 questions and
answered them falsely. We will not disturb that determination.
Nour’s claim that there was insufficient evidence on which the IJ could make a
credibility determination is equally meritless. We review adverse credibility
4
Where, as here, the BIA summarily affirms the IJ, the IJ’s decision effectively
becomes that of the BIA and we review the IJ’s decision. Fiadjoe v. Attorney General,
411 F.3d 135, 152 (3d Cir. 2005).
5
determinations under a substantial evidence standard, overturning such a determination
only where “‘any reasonable adjudicator would be compelled to conclude the contrary.’”
Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir. 2006) (quoting Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004)). In making an adverse credibility
determination, the IJ must provide “specific, cogent reasons” why the applicant is not
credible. Id. (citing Gao v. Ashcroft, 299 F.3d 266, 275-76 (3d Cir. 2002)). The IJ found
that Nour lacked credibility based on numerous inconsistencies in Nour’s testimony
regarding the filling out of the I-485 and the blatant changing of his testimony mid-
hearing. Further, the IJ found that it was impossible to believe that Nour, with the help of
his American-born wife, did not understand the meaning of the questions included on the
I-485. A review of the record shows that the IJ’s credibility determination included
“specific, cogent reasons,” and was supported by substantial evidence.
Even if the IJ’s determinations regarding Nour’s misrepresentations on his change
of status application were not supported by substantial evidence, he found Nour
deportable on the alternative ground that he had overstayed his visa. As Nour does not
challenge that determination, the IJ’s finding is dispositive and Nour is properly
removable.
6
IV.
We likewise reject Nour’s remaining argument that the BIA improperly denied his
motion for remand.5 We review the denial of a motion to remand for abuse of discretion.
McAllister v. Attorney General, 444 F.3d 178, 185 (3d Cir. 2006); Korytnyuk v. Ashcroft,
396 F.3d 272, 283 (3d Cir. 2005). The Supreme Court has identified three principle
grounds on which the BIA may deny a motion to reopen or remand: (1) where a movant
has failed to establish a prima facie case for the relief sought, (2) where a movant has
failed to introduce previously unavailable, material evidence, or (3) in a case of
discretionary relief, such as adjustment of status, where the BIA can make its own
determination that a movant would not be entitled to the discretionary relief. INS v.
Abudu, 485 U.S. 94, 104-05 (1988). The BIA properly denied Nour’s motion on the third
grounds for denial of a remand. When reviewing the BIA’s determination that the
movant would not be entitled to discretionary relief, we first consider whether there is
substantial evidence to support the factual findings underlying the determination and then
determine whether the ultimate denial was an abuse of discretion. In its opinion, the BIA
found that Nour would not qualify for adjustment of status because he had already been
found morally unfit for such discretionary relief by the IJ. As indicated previously in this
opinion, the IJ’s determination that Nour was lying during the hearing was supported by
5
Nour’s final contention, that the IJ violated his due process rights by failing to
conduct a full and fair hearing, is frivolous. It is clear that the IJ provided Nour with a
full opportunity to present evidence and a fair hearing.
7
substantial evidence. Because of this determination, Nour has failed to show that he
would be worthy of a favorable exercise of discretion, and the BIA did not abuse its
discretion in denying his motion.
For the reasons set forth above, we will affirm the decision of the BIA.
8