474 F.3d 918 (6th Cir. 2007), 05-3694, Randhawa v. Gonzales

Docket Nº:05-3694.
Citation:474 F.3d 918
Party Name:Munroop RANDHAWA, Petitioner-Appellant, v. Alberto R. GONZALES, United States Attorney General, Respondent-Appellee.
Case Date:January 30, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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474 F.3d 918 (6th Cir. 2007)

Munroop RANDHAWA, Petitioner-Appellant,

v.

Alberto R. GONZALES, United States Attorney General, Respondent-Appellee.

No. 05-3694.

United States Court of Appeals, Sixth Circuit.

January 30, 2007

Submitted: November 15, 2006.

On Petition for Review of a Decision of the Board of Immigration Appeals, No. A45 599 877.

ON BRIEF:

Martin R. Guajardo, Martin, Resendez & Guajardo, San Francisco, California, for Petitioner.

Blair T. O'Conner, Emily Anne Radford, United States Department of Justice, Washington, D.C., for Respondent.

Before: KEITH and CLAY, Circuit Judges; MAYS, District Judge.[*]

OPINION

CLAY, Circuit Judge.

Petitioner Munroop Randhawa ("Petitioner") argues on appeal that the Board of Immigration Appeals ("BIA") improperly denied her motion to reconsider a previous BIA decision denying Petitioner's motion to reopen her removal proceedings as untimely pursuant to 8 C.F.R. § 1003.2(c)(2). Petitioner argues that a previously filed appeal to this Court tolled the time limit for filing her motion to reconsider with the BIA. For the reasons that follow, we DENY the petition for review.

On October 31, 2002, the BIA affirmed the decision of the Immigration Judge, who concluded that Petitioner was removable

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under 8 U.S.C. §§ 1227(a)(1)(D)(i) & (G)(i). Petitioner filed an untimely motion to reopen the BIA's decision on June 23, 2004, which the BIA denied for that reason on July 28, 2004. Petitioner then filed a timely petition for review of the BIA's denial of her motion to reopen; she also filed an untimely motion to reconsider the BIA's denial of her motion to reopen on March 2, 2005. On May 10, 2005, the BIA denied Petitioner's motion to reconsider because it was not timely filed. Petitioner then brought the instant petition for review, challenging the BIA's denial of her motion to reconsider. Petitioner argues that her previously filed petition for review tolls the 30-day deadline for filing a motion to reconsider. 1

I.

Petitioner is a citizen of India and a medical doctor. On July 28, 1995, Petitioner married Dr. Parneet Singh Sohi, a dentist and citizen of the United States, in a marriage arranged by their families. Petitioner was admitted to this country on or about June 21,1996, as a permanent resident on a conditional basis, the condition being her marriage to Dr. Sohi. This marriage was judicially annulled in the Ohio Court of Common Pleas on December 12, 1996, on the grounds that Petitioner married Dr. Sohi "for the sole purpose of obtaining United States residency." J. A. at 135-36. On January 13, 1999, Petitioner received a notice to appear.

On September 29, 1999, a hearing was held on the notice to appear before United States Immigration Judge Elizabeth A. Hacker (the "IJ"), wherein Petitioner conceded removability under 8 U.S.C. § 1227(a)(1)(D)(i) and denied removability under 8 U.S.C. § 1227(a)(1)(G)(i). Petitioner sought to waive the requirement to file a joint petition to remove the condition on residence, as she was no longer married. 2 On May 8, 2001, the IJ denied Petitioner's application for a waiver of the requirement of filing a joint petition, finding that Petitioner was removable on all grounds stated in the notice to appear. Petitioner appealed this decision to the BIA, which affirmed the IJ's decision on October 31, 2002.

On November 27, 2002, Petitioner filed a petition for review of the BIA's October 31, 2002 decision in this Court. On June 23, 2004, Petitioner moved to reopen the October 31, 2002 decision of the BIA. Petitioner acknowledged that her motion to reopen was not filed within 90 days of the October 31, 2002 BIA decision as required by 8 U.S.C. § 1229a(c)(7)(C)(i), 3 but argued that the BIA should nevertheless reopen her proceedings on the strength of her "crucial piece of new evidence"--the results of a polygraph test. J.A. at 45. On July 28, 2004, the BIA denied her motion to reopen. The BIA noted that her motion to reopen was untimely, and although it had limited discretion to reopen a case sua sponte at any time in extraordinary circumstances, Petitioner's case did not present such circumstances. 4 Petitioner then filed a petition for review in this Court challenging the BIA's denial of her

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motion to reopen. The Court denied this petition for review on June 7, 2006. Randhawa v. Gonzales,184...

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