[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 15, 2006
No. 05-10587 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A77-318-249
EJAZ AHMED SHAH,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 15, 2006)
ON PETITION FOR REHEARING
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
The petition for rehearing is granted and the prior opinion filed September
14, 2005, is vacated. The following opinion is substituted.
Ejaz Ahmed Shah petitions for review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion for reconsideration of the BIA’s decision
affirming the Immigration Judge’s (“IJ”) denial of Shah’s motion for a
continuance. We affirm the BIA for the reasons set forth below.
I.
Shah, a native and citizen of Pakistan, arrived at Los Angeles International
Airport on July 4, 2000, without valid entry documents. He applied for admission
to the United States and was paroled into the country based on a credible threat of
persecution. The Immigration and Naturalization Service (“INS”)1 filed a Notice
to Appear on July 19, 2000, charging Shah as an arriving alien removable for
failure to possess valid entry documents. INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). At a hearing before an IJ on March 29, 2001, Shah conceded
removability. Initially, Shah requested relief from removal by filing an application
for asylum and withholding of removal and an application for relief under the
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department. Because this case commenced while the INS was still in existence, we refer to the
INS rather than the DHS.
2
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”).
During the course of his removal proceedings, Shah married a United States
citizen, and subsequently filed an I-130 Petition for Alien Relative. At a hearing
before an IJ on January 9, 2003, Shah withdrew with prejudice his request for
asylum, withholding of removal, and protection under the CAT, and instead, he
moved for a continuance based on the pending I-130 petition, arguing that he
satisfied the criteria outlined in Matter of Velarde, 23 I. & N. Dec. 253 (BIA
2002).2 The IJ denied the motion for a continuance, noting that he did not have the
authority to adjudicate either the I-130 petition or the application for adjustment of
status, and ordered Shah’s removal.
Shah appealed the decision to the BIA. Although he conceded that the IJ
lacked the authority to adjust his status, Shah maintained that the IJ abused his
discretion by denying the motion for continuance without considering Shah’s
2
In Velarde, the BIA explained that a properly filed motion to reopen for adjustment of
status based on a marriage entered into after the commencement of removal proceedings may be
granted in the exercise of discretion notwithstanding the pendency of a visa petition filed on the
alien’s behalf, if: (1) the motion is timely filed; (2) the motion is not numerically barred by the
regulations; (3) the motion is not barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or
on any other procedural grounds; (4) clear and convincing evidence is presented indicating a
strong likelihood that the marriage is bona fide; and (5) the INS does not oppose the motion or
bases its opposition solely on Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992) (holding that a
motion to reopen to apply for an adjustment of status based on an unadjudicated visa petition
filed by a United States citizen or lawful permanent resident spouse must be denied). Matter of
Velarde, 23 I. & N. Dec. at 256.
3
evidence that the marriage was bona fide. The BIA remanded the case to the IJ to
prepare a separate oral or written order. The IJ issued a written opinion
reaffirming his oral decision, distinguishing Velarde and explaining again that he
lacked jurisdiction to adjudicate the I-130 petition or an application for adjustment
of status because such authority “is vested exclusively in [the United States
Citizenship and Immigration Services (“USCIS”)] in the case of arriving aliens.”
The BIA then affirmed without opinion on August 12, 2004, making the IJ’s
decision the final agency determination.
Shah moved the BIA for reconsideration. In his motion, Shah asserted, inter
alia, that the BIA’s decision in Matter of Velarde should control. The BIA denied
the motion. Shah then filed the instant petition for review.
II.
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Assa’ad v. U.S. Attorney Gen., 332 F.3d 1321, 1341 (11th Cir. 2003),
cert. denied, 125 S. Ct. 138 (2004). Motions for reconsideration are disfavored in
removal proceedings. INS v. Doherty, 502 U.S. 314, 323 (1992) (discussing
motions to reopen and explaining that such motions are disfavored because “as a
general matter, every delay works to the advantage of the deportable alien who
wishes merely to remain in the United States”). Further, it is clear that the decision
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to grant a motion for reconsideration lies firmly within the discretion of the BIA. 8
C.F.R. § 1003.2(a).
Here, the BIA did not abuse its discretion by denying the motion for
reconsideration. On appeal to this court, Shah argues for the first time that 8
C.F.R. § 245.1(c)(8) is invalid as inconsistent with 8 U.S.C. § 1255(a). The
regulation, however, which rendered arriving aliens in removal proceedings
ineligible to apply for adjustment of status, has since been removed from the Code
of Federal Regulations.3 Eligibility of Arriving Aliens in Removal Proceedings to
Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for
Adjustment of Status, 71 Fed. Reg. 27585 (May 12, 2006). Although Shah did not
present this argument before the IJ or the BIA, this court has noted that “[s]ome
circuits have indicated in dicta that constitutional challenges to the INA and INS
procedures and some due process claims do not require exhaustion, because the
BIA does not have the power to adjudicate those claims.” Sundar v. INS, 328 F.3d
1320, 1325 (11th Cir. 2003) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir.
1999); Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999); Mojsilovic v. INS,
156 F.3d 743, 748 (7th Cir. 1998); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.
3
Prior to the removal of the regulation, this circuit held that it was invalid in Scheerer v.
U.S. Attorney General, 445 F.3d 1311, 1320-22 (11th Cir. 2006) (invalidating 8 C.F.R
§ 1245.1(c)(8), which was identical to 8 C.F.R. § 245.1(c)(8)).
5
1994)).
Shah’s contention that the denial of his motion for a continuance by the IJ
and the denial of his motion for reconsideration by the BIA were grounded in the
now-defunct regulation, however, is misplaced. The facts of this case are quite
unlike those in Scheerer v. U.S. Attorney General, where, after holding that 8
C.F.R. § 1245.1(c)(8) was invalid, this court reversed the BIA’s denial of the
petitioner’s motion to reopen because the BIA’s decision specifically relied on the
regulation. 445 F.3d 1311, 1322 (11th Cir. 2006). Nothing in the record here
indicates that the IJ or the BIA based their decisions on the former 8 C.F.R.
§ 245.1(c)(8).
In his written decision, the IJ noted that “[t]he decision in Matter of Velarde
was a response to the fact that the Board’s decision in Matter of Arthur . . . coupled
with the regulation limiting respondents to one motion to reopen filed within 90
days of a final administrative decision and the Immigration and Naturalization
Service’s inability to adjudicate many I-130 petitions within that time frame, had
the effect of depriving a small class of respondents who were otherwise prima facie
eligible for adjustment of the opportunity to have their adjustment applications
reviewed by an Immigration Judge.” Distinguishing Velarde from the instant
action, the IJ explained that, due to Shah’s status as an arriving alien, he lacked
6
jurisdiction to adjudicate both the I-130 petition and the application to adjust status
because “[t]he authority to adjudicate both of these is vested exclusively in [the
United States Citizenship and Immigration Services (“USCIS”)] in the case of
arriving aliens.” The IJ reasoned that, although Shah would continue to have
redress in front of the USCIS, the IJ’s own lack of jurisdiction rendered the
rationale of Velarde inapplicable under the circumstances.
Although his written decision lacks citations, the IJ’s determination that he
lacked jurisdiction to adjudicate Shah’s imminent application for adjustment of
status was based on the former 8 C.F.R. § 245.2(a)(1), which Shah acknowledged
in his appellate brief before the BIA and in his motion for reconsideration. A
jurisdictional regulation, 8 C.F.R. § 245.2(a)(1) formerly stated:
An alien who believes he or she meets the eligibility requirements of
section 245 of the Act or section 1 of the Act of November 2, 1966,
and § 245.1 shall apply to the director having jurisdiction over his or
her place of residence unless otherwise instructed in 8 CFR part 245,
or by the instruction on the application form. After an alien, other
than an arriving alien, is in deportation or removal proceedings, his or
her application for adjustment of status under section 245 of the Act
or section 1 of the Act of November 2, 1966 shall be made and
considered only in those proceedings. An arriving alien, other than an
alien in removal proceedings, who believes he or she meets the
eligibility requirements of section 245 of the Act or section 1 of the
Act of November 2, 1966, and § 245.1 shall apply to the director
having jurisdiction over his or her place of arrival. . . .
8 C.F.R. § 245.2(a)(1) (2005), amended by 71 Fed. Reg. 27585 (May 12, 2006).
7
Although the IJ stated incorrectly that the USCIS retained jurisdiction over Shah,
an arriving alien in removal proceedings, the IJ properly determined that the above
regulation divested him of jurisdiction.4 The rescission of the former 8 C.F.R.
§ 245.1(c)(8) (and the concurrent amendments to 8 C.F.R. §§ 245.2(a)(1) and
1245.2(a)(1)) in no way affects the IJ’s determination that he lacked jurisdiction.5
Ultimately, it was the IJ’s correct conclusion that he lacked jurisdiction under the
former 8 C.F.R. § 245.2(a)(1) that formed the foundation for the IJ’s decision
denying Shah’s motion for a continuance. Unlike in Scheerer, 8 C.F.R.
§ 245.1(c)(8), which did not garner a single mention in these proceedings until
Shah’s opening brief in this court, played no role in the IJ’s decision. Compare
Scheerer, 445 F.3d at 1315 (“The BIA denied his motion [to reopen] . . . finding
Scheerer, an arriving alien in removal proceedings, was subject to a regulatory bar,
8 C.F.R. § 1245.1(c)(8), which rendered him ineligible to apply for adjustment of
4
The DHS regulation at 8 C.F.R. § 245.2(a)(1) (2005) and the identically worded
Executive Office of Immigration Review regulation at 8 C.F.R. § 1245(a)(1) (2005) paralleled
the former 8 C.F.R. § 245.1(c)(8) and did not provide either the IJ or the USCIS with jurisdiction
to adjudicate an application for adjustment of status for an arriving alien in removal proceedings.
5
In addition to removing the former 8 C.F.R. § 245.1(c)(8), the Secretary of DHS and the
Attorney General also amended the regulations to clarify which departmental component has
jurisdiction to adjudicate adjustment applications of arriving aliens in removal proceedings. 71
Fed. Reg. 27585 (May 12, 2006). Under the current versions of 8 C.F.R. §§ 245.2(a)(1) and
1245.2(a)(1), the USCIS has exclusive jurisdiction to adjudicate any application for adjustment
of status filed by an arriving alien in removal proceedings with one exception that is inapplicable
here. The IJ’s determination that he lacked jurisdiction to adjust Shah’s status is therefore
correct under the amended regulations as well.
8
status.”). Therefore, because Shah has failed to demonstrate that the IJ erred in
regard to his own jurisdiction or that the IJ or BIA grounded their decisions in the
former 8 C.F.R. § 245.1(c)(8), we hold that the BIA did not abuse its discretion in
denying the motion for reconsideration.
Accordingly, we DENY the petition.
PETITION DENIED.
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