Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-7-2008
Elhattab v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4878
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-4878
____________
ALLAELDIN ELHATTAB,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A75-872-143)
Immigration Judge: Honorable Alberto J. Riefkohl
Submitted Under Third Circuit LAR 34.1(a)
February 1, 2008
Before: RENDELL and CHAGARES, Circuit Judges,
and POLLAK, *District Judge.
____________
(Filed: February 7, 2008)
____________
OPINION OF THE COURT
____________
*Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
CHAGARES, Circuit Judge.
Allaeldin Elhattab petitions for review of a final order of removal issued by the
Board of Immigration Appeals (BIA). Elhattab claims that the BIA abused its discretion,
both in denying his initial motion to reopen and in failing to reopen his claim for
adjustment of status on its own initiative. As Elhattab’s contentions are without merit, we
will deny his petition for review.
I.
As we write mainly for the parties, we only briefly recite the facts. Allaeldin
Elhattab, a native and citizen of Egypt, entered the country in 1993 as a non-immigrant
visitor and remained after his visa expired. Elhattab attempted to adjust his status, based
on his marriage to his first wife but the district director denied the petition. At subsequent
removal proceedings, Elhattab attempted again to adjust his status, now based on a
potential new marriage to a United States citizen, but the Immigration Judge (IJ) ordered
Elhattab removed on March 2, 2005. The IJ noted that Elhattab intended to divorce his
first wife and marry his fiancé and thus “does not have any viable application for
adjustment of status at the present, since he is still married to his first wife and obviously
cannot marry his second prospective wife or his fiancé at the present time.” Appendix
(App.) 166.
Elhattab subsequently appealed to the BIA. The BIA affirmed the IJ’s decision on
May 19, 2006, noting that Elhattab failed to submit evidence to prove that the marriage to
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his second wife was bona fide. On July 10, 2006, Elhattab filed a motion to reopen,
which the BIA ultimately denied, for largely the same reason.1
Finally, on September 20, 2006, Elhattab filed another motion to
reopen/reconsider, arguing, among other things, that the BIA erred in concluding that he
did not establish the bona fides of his marriage. The BIA held that, to the extent his
motion was a motion to reconsider, Elhattab failed to show error in the BIA’s prior
decision; to the extent Elhattab’s motion requested reopening, the motion was untimely
and numerically barred, since it was filed more than 90 days after the BIA’s May 19,
2006 decision and was Elhattab’s second motion to reopen. Elhattab appeals from this
decision by the BIA.
II.
Elhattab’s main contention on appeal is that the BIA abused its discretion in failing
to reopen his case. The BIA has the authority, under 8 C.F.R. § 1003.2, to reopen a case
sua sponte, and so, Elhattab argues, the BIA should have done so in light of the
“overwhelming evidentiary proof regarding the bona fides of his marriage.” Appellant
Br. at 10. However, as we made clear in Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d
Cir. 2003), “[b]ecause the BIA retains unfettered discretion to decline to sua sponte
reopen or reconsider a deportation proceeding, this court is without jurisdiction to review
a decision declining to exercise such discretion to reopen or reconsider the case.” See
1
Indeed, the affidavit Elhattab filed attesting to the validity of his current (second)
marriage seems to have been prepared in support of a previous application for adjustment
of status because it refers to Cecilia, his ex-wife. App. 97-98.
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also 8 C.F.R. § 1003.2(a). Accordingly, we lack jurisdiction to entertain this part of
Elhattab’s appeal.
III.
Elhattab’s subsidiary argument is that the BIA abused its discretion in denying his
initial motion to reopen. As we have held, decisions by the BIA to deny a motion to
reopen “will not be disturbed unless they are found to be ‘arbitrary, irrational or contrary
to law.’” See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).
In its order of November 1, 2006, the BIA reaffirmed its denial of Elhattab’s initial
July 16, 2006 motion to reopen. In that prior decision, the BIA found that Elhattab failed
to provide sufficient evidence to establish the bona fides of his marriage. Specifically, the
BIA pointed to Elhattab’s failure to submit documentary evidence to establish the
commingling of financial resources or a common residence, and his failure to submit a
divorce decree from his alleged earlier divorce. Elhattab now argues that because he had
only been married for a short time when he submitted the documentation supporting his
marriage, much of the information the BIA sought to consider was unavailable to him.
Elhattab’s argument is undercut by the fact that his subsequent motion contained
documents showing joint accounts and a residential lease, both of which predated his
initial motion to reopen. App. 60, 61, 62, 68, 74. As he was in possession of the very
documents he should have submitted to support his initial motion, Elhattab’s argument is
without merit. Accordingly, the BIA did not act arbitrarily, irrationally, or contrary to
law when it denied his initial motion, and we will deny his petition for review.
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