IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2008
No. 06-61159 Charles R. Fulbruge III
Clerk
CLAIRENCE NZELLE CHAMBERS
also known as CLAIRENCE NZELLE NCHO
Petitioner
v.
MICHAEL B. MUKASEY, U.S. Attorney General
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
EMILIO M. GARZA:
Petitioner Clairence Nzelle Chambers (“Petitioner”) petitions for review
of a final order of removal issued by the Board of Immigration Appeals (“BIA”).
That order denied Petitioner’s motion for reconsideration of the BIA’s previous
order, which dismissed Petitioner’s appeal after finding that she was ineligible
for adjustment of status during removal proceedings before the Immigration
Judge (“IJ”). Petitioner also seeks a discretionary stay of removal while she
pursues an application for adjustment of status. We deny the petition for review
and decline to exercise our discretion to stay removal while Petitioner pursues
an application for adjustment of status.
I
No. 06-61159
Petitioner is a native and citizen of Cameroon. She was admitted into the
United States as a student in 1995. Petitioner later married a United States
citizen who filed an I-130 Petition for Alien Relative (“Petition I”) on her behalf
in 1999. Petitioner immediately filed an I-485 Application to Adjust Status
(“Application I”). Petitioner was paroled into the United States in January 2000
while Application I was pending. Petitioner’s husband, however, withdrew
Petition I in 2001. They subsequently divorced. Accordingly, Application I was
denied because there was no longer an underlying visa petition.
Petitioner’s employer, Christus St. Joseph’s Hospital, filed an I-140
Petition for Alien Worker (“Petition II”) on her behalf in January 2003.
Petitioner then filed an I-485 Application to Adjust Status (“Application II”)
based on Petition II. No decision with respect to Petition II or Application II had
issued when, in June 2003, the former Immigration and Naturalization Service
(“INS”) served Petitioner with a Notice to Appear (“NTA”), charging her as
removable pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and
Nationality Act (“INA”), which provides:
[A]liens who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to the United
States: . . . any immigrant at the time of application for admission --
(I) who is not in possession of a valid unexpired immigrant visa,
reentry permit, border crossing identification card, or other valid
entry document required by this chapter, and a valid unexpired
passport, or other suitable travel document, or document of identity
and nationality . . .
8 U.S.C. § 1182(a)(7)(i)(I). Petition II was, however, approved in July 2003.
Petitioner did not appear at her scheduled removal hearing. The IJ therefore
ordered her removed in absentia. Petitioner moved to reopen proceedings,
arguing that she did not receive notice of the date and time of the hearing. The
government filed a notice of non-opposition and attached the NTA to a copy of
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No. 06-61159
the notice of non-opposition, which the government then served on Petitioner’s
counsel. The IJ granted Petitioner’s motion and reopened proceedings.
On March 14, 2005, Petitioner appeared at a hearing before the IJ and
pleaded to the charges contained in the NTA. Petitioner did not object to the
service of the NTA during the hearing nor did she aver that she had received
insufficient notice of the charges against her. Two weeks later, Petitioner filed
a motion to terminate removal proceedings, arguing that the NTA was no longer
valid because the IJ had granted her motion to reopen and contending, for the
first time, defective service of the NTA because it was served on her counsel
rather than on her. The government opposed Petitioner’s motion and filed a
motion to pretermit Application II, arguing that Petitioner was ineligible for
adjustment of status. In May 2005, the IJ denied Petitioner’s motion to
terminate, granted the government’s motion to pretermit, and ordered Petitioner
to appear at a final hearing in July 2005 to advise the IJ of any forms of relief
for which she may be eligible. Following the hearing, the IJ reaffirmed its May
2005 ruling and ordered that Petitioner be removed to Cameroon.
Petitioner appealed to the BIA. On appeal, Petitioner argued that the
NTA was substantively defective, that the NTA was defectively served, and that
she was eligible to seek adjustment of status during removal proceedings. The
BIA rejected these arguments and dismissed Petitioner’s appeal in July 2006.
Petitioner then filed a motion for reconsideration with the BIA. In ruling on that
motion, the BIA acknowledged that, in the original appeal, it had erroneously
observed that Petitioner never departed from and returned to the United States
under a grant of advanced parole. However, the BIA concluded that this error
did not alter its prior ruling. Accordingly, the BIA denied the motion. Petitioner
filed this petition for review of the BIA’s decision on her motion for
reconsideration.
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No. 06-61159
II
Petitioner requests only that we review “the Board’s decision dated
November 26, 2006.” That decision is the BIA’s ruling on Petitioner’s motion for
reconsideration. See Guevara v. Gonzalez, 450 F.3d 173, 176 (5th Cir. 2006)
(holding that “the BIA’s denial of an appeal and its denial of a motion to
reconsider are two separate final orders, each of which require their own
petitions for review”) (citations omitted). “A motion for reconsideration urges an
adjudicative body to re-evaluate the record evidence only.” Zhao v. Gonzalez,
404 F.3d 295, 301 (5th Cir. 2005) (citations omitted). A motion to reconsider
should be denied if it fails to “identify a change in the law, a misapplication of
the law, or an aspect of the case that the BIA overlooked.” Id.
We review the BIA’s decision on a motion for reconsideration under an
abuse of discretion standard. See Guevara, 450 F.3d at 175 (citing Zhao, 404
F.3d at 301). That standard is “highly-deferential” in that we will not disturb
the BIA’s discretion so long as it “is not capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so irrational that it is arbitrary
rather than the result of any perceptible rational approach.” Singh v. Gonzalez,
436 F.3d 484, 487 (5th Cir. 2006) (internal quotations and footnote omitted).
Petitioner raises four issues in this petition.1 First, Petitioner contends
that the NTA was substantively defective.2 Second, Petitioner contends that the
NTA was defectively served. Third, Petitioner contends that the BIA erred in
1
In her Statement of Issues, Petitioner references a purported Due Process violation.
Petitioner, however, does not brief this issue. Accordingly, it is waived. See California Gas
Transport, Inc., v. N.L.R.B., 507 F.3d 847, 853 n. 3 (5th Cir. 2007) (holding that a petitioner
does not preserve an issue merely by mentioning it in her statement of issues without
developing her argument in the body of the brief) (citing Justiss Oil Co., Inc. v. Kerr-McGee
Refining Corp., 75 F.3d 1057, 1067 (5th Cir. 1996)).
2
Nested within this argument, Petitioner contends that the NTA was issued
improvidently because Petition II had been approved and a visa was available to her at the
time the NTA issued. She is incorrect. The NTA was issued in June 2003. Petition II was
approved one month later in July 2003. Accordingly, the BIA correctly rejected this argument.
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No. 06-61159
holding that she could not adjust her status in removal proceedings. Fourth,
Petitioner contends that she is entitled to a stay of removal while she seeks
adjustment of status through Application II.
A
The first issue is whether the NTA was substantively defective. The BIA
held that the NTA was not substantively defective because it “satisfie[d] all the
requirements listed in section 239(a) of the [INA].” Section 239(a) requires that
the NTA indicate: the “nature of the proceedings against [Petitioner],” the “legal
authority under which the proceedings are conducted,” the “acts of conduct
alleged to be in violation of the law,” and the “charges against [Petitioner] and
the statutory provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1).
The NTA in this case satisfied these requirements because it specified that
Petitioner was an “arriving alien” who was “not a citizen or national of the
United States” but rather a “native of Cameroon and a citizen of Cameroon” who
was present in the United States without proper documentation in violation of
“Section 212(a)(7)(A)(i)(I) of the [INA]” and ordered that Petitioner appear
“before an immigration judge of the United States Department of Justice.”
Accordingly, we agree with the BIA that the NTA was not substantively
defective.3
B
The second issue is whether the NTA was defectively served. The BIA
concluded that Petitioner was properly served with the NTA, notwithstanding
the fact that the NTA was served on her counsel rather than on Petitioner. In
making this determination, the BIA relied on two federal regulations, both of
which provide:
3
Our rejection of this argument is buttressed by our conclusion that Petitioner waived
any objection to the NTA by appearing at her initial hearing, failing to object to the admission
of the NTA, and pleading to the charges contained in the NTA. See Section II.B, infra.
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No. 06-61159
Whenever a person is required by any of the provisions of this
chapter to give or be given notice . . . such notice . . . shall be given
by or to, served by or upon, made by, or requested of the attorney or
representative of record, or the person himself if unrepresented.
8 C.F.R. §§ 292.5, 1292.5 (emphasis added). Petitioner contends that the BIA
erred in relying on these regulations and therefore erred in holding that service
on counsel was proper. Specifically, Petitioner claims that the NTA should have
been personally served on her rather than counsel pursuant to the INA, which
provides:
In removal proceedings under section 1229a of this title, written
notice (in this section referred to as a “notice to appear”) shall be
given in person to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel of
record, if any) . . .
8 U.S.C. § 1229(a)(1) (emphasis added). We need not decide this dispute because
Petitioner has waived her challenge to the service of the NTA.
In a civil case, it is well-settled that, “a person waives the defense of
defective service if he voluntarily submits himself to the court’s jurisdiction by
appearing before it and allowing it to adjudicate his rights.” McGuire v. Sigma
Coatings, Inc., 48 F.3d 902, 907 (5th Cir. 1995). Other Circuits have applied a
similar rule in immigration cases. In Qureshi v. Gonzalez, 442 F.3d 985, 990
(7th Cir. 2006), the petitioner argued that the IJ lacked jurisdiction over removal
proceedings because of a defect in the NTA. Notwithstanding the defect, the BIA
held that the IJ had jurisdiction because the NTA was admitted without
objection at the petitioner’s initial removal hearing. See id. The Seventh Circuit
agreed with the BIA and held that the petitioner had waived any objection to the
NTA because the petitioner “failed to object to the admission of the NTA,
conceded his removability, and pleaded to the charge in the NTA, all before
claiming that the certificate of service was defective . . . .” Id. We previously
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No. 06-61159
have agreed with this principle in an unpublished decision. See Sohani v.
Gonzalez, 191 Fed. Appx. 258, 259 (5th Cir. 2006) (holding that because
petitioner “did not object to the admission of the Notice to Appear . . . at the
removal hearing [he] waived his challenge to the IJ’s jurisdiction over the
removal proceedings) (citing Qureshi, 442 F.3d at 990).
Following the reopening of this case, Petitioner, much like the petitioner
in Qureshi, appeared at her initial removal hearing, failed to object to the
admission of the NTA, and pleaded to the charges contained in the NTA.
Although Petitioner did not concede removability as did the petitioner in
Qureshi, we do not find this fact to be dispositive as to the issues of notice and
service. Moreover, Petitioner does not dispute that she had actual notice of the
hearing: she admits that the government served a copy of the NTA on her
counsel along with its notice of non-opposition to her motion for reconsideration.
Petitioner, therefore, received actual notice of removal proceedings well before
the initial hearing she attended. In accordance with the decision of the Seventh
Circuit, we hold that Petitioner has waived any challenge to the NTA by
appearing at her initial removal hearing, failing to object to the NTA at that
initial hearing, and pleading to the charges contained in the NTA. See Qureshi,
442 F.3d at 990.
C
The third issue is whether Petitioner was ineligible for adjustment of
status during her removal proceedings before the IJ. The BIA held that
Petitioner was ineligible. Petitioner contends that the BIA erred in making this
determination because it relied on a prior version of the relevant regulations,
which allowed the IJ only to consider “renewed” adjustment applications
whereas the operative regulations allow the IJ to consider new adjustment
applications, like Petitioner’s. Petitioner is incorrect.
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No. 06-61159
Whether an IJ has jurisdiction to consider an arriving alien’s adjustment
application is determined by federal regulations, which provide:
In the case of an arriving alien who is placed in removal
proceedings, the immigration judge does not have jurisdiction to
adjudicate any application for adjustment of status filed by an
arriving alien unless: (A) The alien properly filed the application for
adjustment of status with USCIS while the arriving alien was in the
United States; (B) The alien departed from and returned to the
United States pursuant to the terms of a grant of advance parole to
pursue the previously filed application for adjustment of status; (C)
The application for adjustment of status was denied by USCIS; and
(D) DHS placed the arriving alien in removal proceedings either
upon the arriving alien’s return to the United States pursuant to a
grant of advance parole or after USCIS denied the application.
8 C.F.R. § 1245.2(a)(1)(ii) (emphasis added). Although Section 1245.2(a)(1)(ii)
does not contain the word “renew” as did its prior version, it requires that an
alien be paroled into the United States “to pursue a previously filed application.”
Petitioner was paroled into the United States in January 2000. The adjustment
application that she wishes to pursue is Application II, which was filed in
2003))three years after her parole. Because Application II was filed after
Petitioner was paroled into the United States, it is not “previously filed” within
the meaning of Section 1245.2(a)(1)(ii). Accordingly, we agree that the IJ lacked
jurisdiction to consider Petitioner’s application. See 8 C.F.R. § 1245.2(a)(1)(ii).
D
The final issue is whether Petitioner is entitled to a stay of removal while
she pursues adjustment of status through Application II in light of the approval
of Petition II. To merit a discretionary stay of removal, Petitioner must show:
“(1) a likelihood of success on the merits; (2) that irreparable harm would occur
if a stay is not granted; (3) that the potential harm to the movant outweighs the
harm to the opposing party if a stay is not granted; and (4) that granting the
stay would serve the public interest.” Ignacio v. I.N.S., 955 F.2d 295, 299 (5th
Cir. 1992) (citations omitted). Petitioner cannot make the requisite showing.
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No. 06-61159
Her arguments with respect to factors (2)-(4) are non-unique: she merely lists
the various difficulties any alien would face upon removal, asserts that those
difficulties outweigh any harm to the government, and baldly asserts that a stay
of removal would advance the public interest by promoting justice. These
arguments are insufficient. In addition, Petitioner still may pursue her
adjustment application from her home country. See 8 U.S.C. § 1252(d).
Accordingly, a stay of removal is not justified.
III
For the foregoing reasons, we DENY the petition for review and DENY a
stay of removal.
PETITION FOR REVIEW DENIED; STAY OF REMOVAL DENIED.
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