Rachak v. Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3864
___________
TARIK RACHAK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A055-045-704)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 23, 2013
Before: SLOVITER, CHAGARES and GREENBERG,
Circuit Judges.
(Filed: August 21, 2013)
Anser Ahmad, Esq.
Advanced Immigration Law Group
114 Walnut Street, Suite 4
Harrisburg, PA 17101-0000
Counsel for Petitioner Tarik Rachak
Eric H. Holder, Jr., Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Thomas W. Hussey, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Margaret A. O’Donnell, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
2
Christina B. Parascandola, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General
_________
OPINION
_________
CHAGARES, Circuit Judge.
Tarik Rachak petitions for review of a Board of
Immigration Appeals (“BIA”) order deeming him ineligible
for cancellation of removal and affirming the denial of a
continuance. We will dismiss the petition in part and deny it
in part.
I.
Rachak, who is a citizen of Morocco, was admitted to
the United States as a lawful permanent resident in August of
2002. In 2006, he was arrested and charged with possession
of marijuana under 35 Pa. Cons. Stat. § 780-113(a)(31).
Rachak was placed on probation with supervision under
Pennsylvania’s “Accelerated Rehabilitative Disposition”
program, Administrative Record (“A.R.”) 217, but did not
comply with the conditions of the program. Thereafter, the
state court terminated Rachak’s participation in the program
3
and on February 16, 2011, Rachak pled guilty to the charge
arising out of his 2006 marijuana possession arrest. A.R.
214-16.
On July 20, 2011, Rachak pled guilty to charges of
possession of cocaine and drug paraphernalia under 35 Pa.
Cons. Stat. §§ 780-113(a)(16) and (a)(32) in the York County
Court of Common Pleas. He was sentenced to two
consecutive terms of twelve months of probation. A.R. 186-
202.
On September 29, 2011, the Department of Homeland
Security charged Rachak with being removable under 8
U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a
controlled substance offense in July 2011. Rachak then filed
a Pennsylvania Post Conviction Relief Act (“PCRA”) petition
attacking his July 2011 conviction. For a time, he
successfully sought immigration continuances while he
mounted his collateral attack, although the Government
opposed some of these requests.
At a hearing on May 24, 2012, Rachak’s attorney
advised the Immigration Judge (“IJ”) that his PCRA petition
had been denied at the trial level “almost a month ago,” but
was currently on appeal before the Pennsylvania Superior
Court. A.R. 119.1 The IJ issued an oral decision declining to
grant any further continuances. In addition, the IJ ordered
Rachak removed and noted that his 2006 conduct rendered
1
The Pennsylvania Superior Court subsequently affirmed the
denial of his PCRA petition. Pennsylvania v. Rachak, 62 A.3d 389(Pa. Super. Ct. 2012). Rachak’s petition for allowance of appeal
was denied by the Pennsylvania Supreme Court. Pennsylvania v.
Rachak, 67 A.3d 796 (Pa. 2013).
4
him ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a) because he had not accrued seven years of
continuous residence in the United States. A.R. 63-65. The
BIA affirmed, A.R. 3-5, and this timely petition for review
followed.
Rachak does not argue that the final order of removal
itself was erroneously granted. Instead, Rachak contends that
the IJ and BIA wrongly determined that he was ineligible for
cancellation of removal. He also contends that his motion for
an additional continuance should have been granted.
II.
We must first address the scope of our jurisdiction.
Because Rachak is a criminal alien found removable pursuant
to 8 U.S.C. § 1227(a)(2)(B)(i), our review of the agency’s
determination is limited to “constitutional claims or questions
of law.” 8 U.S.C. § 1252(a)(2)(C)-(D). To fall under §
1252(a)(2)(D)’s grant of jurisdiction, an issue must be either a
“purely legal inquir[y]” or raise a “colorable” claim that a
constitutional violation has occurred. Roye v. Att’y Gen. of
U.S., 693 F.3d 333, 339 (3d Cir. 2012).
A.
The first issue Rachak raises in this appeal is whether
he was statutorily eligible for cancellation of removal. We
hold that this issue involves a purely legal question
concerning the operation of the “stop-time rule” of 8 U.S.C.
§ 1229b(d)(1)(B). See Baraket v. Holder, 632 F.3d 56, 58 (2d
Cir. 2011) (per curiam) (“This appeal presents solely a
question of law: how to properly interpret 8 U.S.C. §
5
1229b(d)(1).”). Accordingly, we have jurisdiction to consider
whether Rachak was eligible for cancellation of removal.
B.
Next we examine whether we have jurisdiction to
consider Rachak’s argument that the IJ “erred in denying a
continuance in this case, and the BIA erred in affirming this
decision.” Rachak Br. 19. We have never issued a
precedential opinion deciding whether we have jurisdiction to
review claims of this sort in the constrained context of
criminal-alien petitions. However, our case law provides
helpful guideposts to resolve this issue.
The denial of a motion for a continuance is
discretionary. Khan v. Att’y Gen. of U.S., 448 F.3d 226, 233
(3d Cir. 2006). We have held that discretionary decisions, as
here, do “not raise a constitutional claim or question of law
covered by [§ 1252(a)(2)(D)’s] judicial review provision.”
Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006);
see Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 188 (3d
Cir. 2007) (“[I]t is clear that courts of appeals continue to
have no jurisdiction to review discretionary and factual
determinations presented in petitions for review.”).
Specifically, we have recognized that “[d]espite the special
treatment accorded constitutional claims and questions of
law, § 1252(a)(2)(D) does not exempt . . . discretionary
challenges from the jurisdiction-stripping provisions of the
[Immigration and Nationality Act].” Sukwanputra, 434 F.3d
at 634. See generally Jarbough, 483 F.3d at 190 (“Recasting
challenges to factual or discretionary determinations as due
process or other constitutional claims is clearly insufficient to
6
give this Court jurisdiction under § 1252(a)(2)(D).”).2
As a result, we conclude that we have no jurisdiction
over Rachak’s challenge to the denial of his motion for a
continuance. We note that our holding today is in accord
with those of our sister Courts of Appeals. See, e.g., Waugh
v. Holder, 642 F.3d 1279, 1284-85 (10th Cir. 2011)
(“[P]etitioner also argues the IJ and BIA erred in denying his
request to continue the removal proceedings until his motion
to withdraw his guilty plea was resolved in state court. . . .
This challenge raises neither a constitutional nor a legal issue,
so we are without jurisdiction to review it.”); Ogunfuye v.
Holder, 610 F.3d 303, 307 (5th Cir. 2010) (holding that
petitioner’s “argument that the IJ abused its discretion by not
granting her a continuance does not present a constitutional
claim or issue of law that this court has jurisdiction to
consider”); Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d
1191, 1197 (11th Cir. 2008) (holding that the denial of a
continuance is discretionary and that the court lacks
jurisdiction under § 1252(a)(2)(D) to review such a denial).3
2
Rachak does not contend that the denial of his motion for a
continuance constituted a purely legal question and he did not
directly argue that the denial raised a constitutional issue. To the
extent Rachak might have raised a due process claim flowing from
the fact that the Pennsylvania appellate courts had not yet ruled on
his PCRA challenge, it would have failed as we have held that the
pendency of a collateral attack on a conviction does not negate the
finality of the conviction for immigration purposes. See Paredes v.
Att’y Gen. of U.S., 528 F.3d 196, 198-99 (3d Cir. 2008). Of
course, the agency is free to take the pendency of those matters
into account when ruling on continuance motions.
3
Rachak’s principal argument in support of our jurisdiction is
based on Khan, where we noted that “we have jurisdiction to
review an IJ’s denial of a continuance.” 448 F.3d at 233. In
7
Accordingly, because we lack jurisdiction to review
the agency’s denial of a continuance, we will dismiss this
petition for review in part.
III.
We exercise de novo review of the agency’s
interpretation of the stop-time provision of 8 U.S.C.
§ 1229b(d)(1)(B), subject to applicable principles of
deference. See Briseno-Flores v. Att’y Gen. of U.S., 492
F.3d 226, 228 (3d Cir. 2007). Since the BIA issued its own
decision on the merits of this claim, we review only its
decision. Hanif v. Att’y Gen. of U.S., 694 F.3d 479, 483 (3d
Cir. 2012).
The Attorney General may cancel removal of a
permanent-resident alien who is otherwise inadmissible or
deportable if, inter alia, the alien has “resided in the United
States continuously for 7 years after having been admitted in
so doing, we held that 8 U.S.C. § 1252(a)(2)(B)(ii), which
creates a jurisdictional bar for the review of decisions
“specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security,” did
not apply to the denial of a continuance “[b]ecause the IJ’s
authority to rule on a continuance motion is not specified
under [8 U.S.C. §§ 1151-1378] to be in the discretion of the
Attorney General.” Id. (quotation marks omitted). Here, as
in Khan, § 1252(a)(2)(B)(ii) does not bar review of the denial
of a continuance. Rather, the subsection applicable to this
case is § 1252(a)(2)(C), which deprives us of jurisdiction if
the final order of removal is due to the commission of certain
criminal offenses. Khan was not a criminal-alien case.
8
any status.” 8 U.S.C. § 1229b(a)(2). The statute
terminates the accrual of the period of residence when the
alien has “committed an offense” that renders him either
inadmissible or removable. Id. § 1229b(d)(1)(B). Once the
period of continuous residence is terminated, it is not
restarted by subsequent events. See Briseno-Flores, 492 F.3d
at 230-31. The parties agree that the 2006 conduct did not
render Rachak removable, but it did plainly render him
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because it
was “a violation of . . . any law or regulation of a State . . .
relating to a controlled substance.”4
Tacitly conceding his inadmissibility, Rachak contends
that because “a waiver was available to Petitioner to waive
the inadmissibility under this provision,” the “2006 offense
did not stop the clock on the requisite seven (7) years of
continuous residency in the U.S.” Rachak Br. 15.
Specifically, 8 U.S.C. § 1182(h) permits the Attorney General
to waive the inadmissibility of an alien in certain
circumstances relating “to a single offense of simple
possession of 30 grams or less of marijuana.” But Rachak’s
argument suffers from a fatal flaw: he did not apply for this
waiver before the agency, and indeed the record suggests that
he has not invoked it before now.5 The mere existence of the
waiver provision is immaterial to our analysis.
We can discern no reason to disturb the BIA’s stop-
4
The inadmissibility carve-out of 8 U.S.C. § 1182(a)(2)(A)(ii)
does not apply to controlled-substance convictions, but only to
crimes involving moral turpitude under 8 U.S.C. §
1182(a)(2)(A)(i)(I).
5
We need not determine whether he would have actually been
eligible.
9
time decision as we agree that Rachak did not possess the
required seven years of continuous residence for the purpose
of applying for cancellation of removal. As a result, we will
deny the remainder of the petition for review.
IV.
For the foregoing reasons, we will dismiss the petition
in part and deny it in part.
10