NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0040n.06
No. 08-4299 FILED
Jan 25, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MASTAFA KHARBACH, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF AN
v. ) ORDER OF T HE BO ARD O F
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
Before: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.
COOK, Circuit Judge. Mastafa Kharbach, a native and citizen of Morocco, seeks review of
a Board of Immigration Appeals (“BIA”) decision affirming the Immigration Judge (“IJ”)’s denial
of his applications for withholding of removal and voluntary departure. We deny Kharbach’s
petition for review.
Kharbach entered the United States as a nonimmigrant visitor in 1999, with authorization to
remain in the country for a temporary period. He overstayed his visa, and the Immigration and
Naturalization Service, now part of the Department of Homeland Security (“DHS”), charged him
with removability. See 8 U.S.C. § 1227(a)(1)(B). After conceding removability, Kharbach requested
withholding of removal and, in the alternative, voluntary departure. The IJ denied both applications
and the BIA affirmed. This petition for review followed.
No. 08-4299
Kharbach v. Holder
Kharbach advances no argument supporting his stance that the BIA erred in determining the
merits of his withholding-of-removal claim. He instead vaguely asserts a due-process challenge,
calling the BIA’s decision arbitrary and capricious for failing to account for how a head injury he
suffered in this country affected his ability to prosecute the petition. The BIA enjoys a presumption
of having properly reviewed the record. Pilica v. Ashcroft, 388 F.3d 941, 949–50 (6th Cir. 2004);
Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir. 1991) (The BIA is “entitled to a presumption of
regularity,” and petitioner has the burden to prove that “the BIA gave short shrift to the
evidence . . . presented.”). Moreover, Kharbach offers no rationale as to how his injury may have
influenced his testimony or how the outcome would have differed had the BIA allocated more
importance to it. We accordingly reject this challenge.
Kharbach also alleges that the BIA erred in denying his claim for voluntary departure.
Although we generally lack jurisdiction to review voluntary departure denials, 8 U.S.C. § 1229c(f),
we do review questions of law and constitutional issues presented. 8 U.S.C. § 1252(a)(2)(D).
Kharbach submits that the BIA committed legal error by not recognizing that seizure by the DHS
foreclosed his ability to produce his passport. True enough, the regulations excuse presentation if
“[t]he document is already in the possession of the Service.” 8 C.F.R. § 1240.26(b)(3)(i)(B). But
“an alien must possess a valid, unexpired passport even if the passport is in the possession of the
DHS.” Atmadja v. U.S. Attorney Gen., 322 F. App’x 889, 890 (11th Cir. 2009) (emphasis added);
see also Kandamar v. Gonzales, 464 F.3d 65, 69–70 (1st Cir. 2006). Because, as both the IJ and BIA
appreciated, Kharbach’s passport expired during his stay and he took no steps to renew it, we reject
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No. 08-4299
Kharbach v. Holder
this claim, too, and deny the petition.
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