Hussain v. Gonzales

• Decision Date: 16 February 2007
• Docket Number: No. 05-2350.,05-2350.
• Citation: 477 F.3d 153
• Parties: Afzal HUSSAIN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

477 F.3d 153

Afzal HUSSAIN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-2350.

United States Court of Appeals, Fourth Circuit.

Argued September 19, 2006.

Decided February 16, 2007.

ARGUED: Jennifer Sheethel Varughese, Herndon, Virginia, for Petitioner. Ernesto Horacio Molina, II, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Joe W. Nesari, Law Offices of J.W. Nesari, L.L.C., Herndon, Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Song E. Park, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and HENRY F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Petition denied by published opinion. Judge FLOYD wrote the majority opinion, in which Judge NIEMEYER concurred. Senior Judge HAMILTON wrote a dissenting opinion.

OPINION

FLOYD, District Judge.

Afzal Hussain, a native and citizen of Pakistan, petitions this Court for review of an order of the Board of Immigration Appeals (Board) denying his appeal from the immigration judge's order which denied his motion to reopen and disposed of his motion to remand. Hussain's only challenge is to the denial of his motion to remand. For the reasons set forth below, we deny the petition for review.

I.

On December 6, 2000, a notice to appear was issued to Hussain, alleging that he entered the United States at an unknown location on or about April 1992. (J.A. at 5.) The notice further averred that Hussain was not admitted or paroled after inspection, nor did he have any valid reentry documents. Id.

On October 3, 2002, the immigration judge denied Hussain's request for relief from removal in absentia. (J.A. at 23.) On January 26, 2005, more than two years after the immigration judge's order, Hussain filed a motion to reopen with the immigration judge. (J.A. at 31-58.) Hussain claimed that 1) the in absentia removal order should be rescinded because his failure to appear at the hearing was due to exceptional circumstances; 2) the denial of relief under the Violence Against Women Act, in which he claimed that he was abused by his first wife, was in error; and 3) he was now eligible for adjustment of status to that of a lawful permanent resident on the basis of a labor certification filed on his behalf by his employer on April 24, 2001. (J.A. at 31-58.)

The immigration judge denied the motion to reopen for the reasons stated in the Department of Homeland Security's (DHS) response. (J.A. at 178.) The DHS had argued that Hussain's motion was untimely and that he did not establish exceptional circumstances. (J.A. at 150-51.)

Hussain appealed the immigration judge's decision to the Board. (J.A. at 174-76.) While the appeal was pending, Hussain filed a motion to remand his case to the immigration judge. (J.A. at 186.) According to Hussain, his new wife had filed an Immigrant Petition on his behalf. (J.A. at 187.) Hussain argued that his circumstances had materially changed and that he was entitled to a rehearing before the immigration judge. Id. Hussain attached several documents to his motion to remand, claiming that he was eligible for immediate and comprehensive relief. (J.A. at 186-238.) The Government neglected to file a response to the motion to remand.

The Board found that Hussain's motion to reopen the immigration judge's order of removal entered in absentia was untimely. (J.A. at 259-60.) The Board further noted that Hussain "is also seeking to reopen proceedings to apply for adjustment of status. An alien is not required to rescind his or her deportation order under [the applicable] Act if he or she is pursuing an application for new relief, and provided there is no evidence that the respondent received the required warnings" for failing to appear. Id. (citing Matter of M-S, 22 I. & N. Dec. 349 (BIA 1998)). The Board found that motion to be untimely, as well. Id. at 260. This petition followed.

II.

Hussain limits his petition for review to challenging the disposition of the motion to remand. We review the denial of a motion to remand for abuse of discretion. Obioha v. Gonzales, 431 F.3d 400, 408 (4th Cir.2005). The Board abuses its discretion when it "fails to offer a reasoned explanation for its decision, distorts or disregards important aspects of the alien's claim." Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (internal quotation marks and citation omitted).

A.

Hussain argues that the Board erred by failing to mention or address his motion to remand in the order denying relief. The Government admits that the Board failed to refer specifically to the motion to remand. The Government contends, however, that the Board referenced the motion to remand when it discussed Hussain's motion to reopen to apply for adjustment of status.

Because Hussain's motion was filed while the appeal was pending, it is properly classified as a motion to remand. See 8 C.F.R. § 1003.2(c)(4)(2005). Thus, Hussain is correct in his contention that the Board failed to dispose specifically of the motion to remand.

The record supports the finding that the Board's reference to the motion to reopen was a reference to the motion Hussain filed before the immigration judge. As noted above, in that motion, Hussain sought reopening as a result of exceptional circumstances causing him to be absent from his hearing, an adjustment of status because of a labor certification filed by his attorney and relief under the Violence Against Women Act. (J.A. at 247-55.)

The Board's order initially referenced Hussain's argument that exceptional circumstances were present when he missed his immigration hearing. (J.A. at 259.) As observed above, however, the Board found the motion for relief as to that request to be untimely. Id. It continued by stating that Hussain "is also seeking to reopen proceedings to apply for adjustment of status."¹ Id. The Board also noted that an alien is not obligated under some circumstances to have a deportation order rescinded if the alien is pursuing an application for new relief. (J.A. at 260 (citing Matter of M-S, 22 I. & N. Dec. 349).)

In Matter of M-S, the petitioner sought to have the immigration judge rescind the order of removal so as to apply for adjustment of status. Id. The Board held that in some circumstances the order does not have to be rescinded. Id. at 356.

In the instant case, after noting that an order does not have to be rescinded in certain cases, the Board continued by finding that, despite the fact that rescission is sometimes unnecessary, Hussain's motion to reopen to seek new relief was untimely.² The Board's discussion of whether rescission is essential relates to Hussain's motion to reopen, in which he did seek rescission, rather than the motion to remand, in which he did not specifically seek rescission. Therefore, based on the case citation in the order, the fact that the Board referred to the motion as one to reopen, instead of referring to a motion for remand, the discussion of rescission, and the fact that the motion to reopen filed before the immigration judge sought an adjustment of status, we are convinced that the Board was not referring to the motion to remand when it disposed of the "motion to reopen."

In addition, the Government did not oppose Hussain's motion to remand. Pursuant to 8 C.F.R. § 1003.2(g)(3), if the Government does not file a response to a motion, it is deemed unopposed. An unopposed motion to remand for adjustment of status may be remanded. In re Erales, A75-512-988, 2005 WL 649163 (BIA Jan 11, 2005) (unpublished); In re Marquez-Ledezma, No. A78-153-433, 2004 WL 2418722 (BIA Oct. 8, 2004) (unpublished). The Board's failure to make reference to the Government's lack of a response lends support to Hussain's claim that the Board neglected to consider the motion.

Moreover, the finding that the motion was untimely apparently refers to Hussain's motion to reopen filed before the immigration judge. That motion was filed more than two years after the immigration judge's decision. A motion to reopen must be filed no later than ninety days after the date of the administrative decision at issue. 8 C.F.R. § 1003.2(c)(2). The parties have not submitted, and we have not found, either a comparable regulation for motions to remand or an instance in which a motion to remand, filed while an appeal was pending, was denied because it was untimely. Accordingly, we find that the Board's order neglected to properly dispose of the motion to remand.

B.

The Government contends that if the Board failed to consider Hussain's motion to remand, this Court should, nevertheless, deny the petition for review. According to the Government, Hussain is statutorily prohibited from receiving adjustment of status because he entered the country illegally. We agree.

The Attorney General, in his discretion, may adjust the status of an alien to that of a lawful permanent resident if the alien "was inspected and admitted or paroled into the United States . . ." 8 U.S.C.A. § 1255(a) (2000); Jean v. Gonzales, 435 F.3d 475, 477 (4th Cir.2006). Generally, an alien present in the United States without being admitted or paroled is inadmissible. 8 U.S.C.A. § 1182(a)(6) (2000).

The record supports the finding that Hussain was not inspected or paroled into the United States. (J.A. at 5.) In fact, in his documentation to adjust his status, Hussain admitted that he entered the United States without inspection. (J.A. at 122, 125.)

A motion to reopen proceedings "for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation." 8 C.F.R. § 1003.2(c)(1). To establish a prima facie case for adjustment of status, Hussain must...