Mahmood v. Holder

• Decision Date: 01 April 2009
• Docket Number: Docket No. 07-5656-ag.
• Citation: 570 F.3d 466
• Parties: Tahir Mohammad MAHMOOD, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

570 F.3d 466

Tahir Mohammad MAHMOOD, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.¹

Docket No. 07-5656-ag.

United States Court of Appeals, Second Circuit.

Argued: November 24, 2008.

Decided: April 1, 2009.

Amended: June 25, 2009.

Usman B. Ahmad, Long Island City, N.Y., for Petitioner (on submission).

Gregory G. Katsas, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Senior Litigation Counsel, Matt A. Crapo, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent (on submission).

Before WINTER, WALKER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Tahir Mohammad Mahmood, a native and citizen of Pakistan, was granted voluntary departure. Prior to the expiration of the period of voluntary departure, but more than ninety days after the final order of removal was issued, Mahmood filed a motion to reopen his removal proceedings based on his marriage to a U.S. citizen. The immigration judge ("IJ") denied the motion both as untimely and because petitioner, having failed to depart within the period for voluntary departure, was barred from seeking adjustment of status. The Board of Immigration Appeals ("BIA") affirmed the dismissal on the same grounds. Mahmood petitions this Court, arguing, inter alia, that the Agency erred in failing to reopen his removal proceedings sua sponte. For the reasons that follow, we conclude that because (a) the Agency incorrectly assumed that Mahmood's failure to depart timely from the United States conclusively barred an adjustment of his status, and, on this basis, (b) may have declined to consider whether to exercise its discretionary sua sponte authority, it is appropriate to remand to the Agency for reconsideration.²

BACKGROUND

Mahmood arrived in the United States on November 20, 1998 on a non-immigrant temporary visa. On May 2, 2003, the Department of Homeland Security ("DHS") initiated removal proceedings against Mahmood.

On July 10, 2003, Mahmood married Juanita Lopez, a U.S. citizen. Lopez thereafter filed a visa Petition for Alien Relative (Form I-130) with DHS on behalf of Mahmood. Mahmood simultaneously applied for adjustment of status and employment authorization. On April 4, 2006, DHS denied Lopez's visa petition, concluding that Lopez and Mahmood failed to show that their marriage was not "entered into for the purpose of evading the immigration laws." See 8 C.F.R. § 204.2(a).

On February 14, 2007, prior to completion of Mahmood's removal proceedings, the Immigration Judge (Chase, I.J.) granted Mahmood 120 days, or until June 14, 2007, to depart the United States voluntarily. The IJ entered an alternative order of removal to Pakistan.

On May 14, 2007, shortly after his divorce from Lopez was finalized, Mahmood married Brittany Adair, a U.S. citizen. Thereafter, on June 5, 2007, Mahmood filed a motion to reopen his removal proceedings, asserting that he was eligible for adjustment of status as a result of this marriage. Mahmood explained that Adair had filed a Petition for Alien Relative (Form I-130) on his behalf on May 30, 2007. Mahmood's motion to reopen requested "that the Court Reopen these proceedings based upon marriage to a U.S. Citizen and set a date for a master calendar hearing for [Mahmood] to provide to the Court proof of his eligibility to Adjust Status." Mahmood's motion to reopen also requested a stay of voluntary departure, and stated Mahmood's belief that the filing of a motion to reopen would automatically toll the date for his voluntary departure. In an affidavit submitted with his motion to reopen, Mahmood asserted that his attorney had not fully explained the meaning of voluntary departure, and that he would not have agreed to voluntary departure had he understood its terms.

On June 19, 2007, the IJ denied Mahmood's motion to reopen for two reasons: (1) Mahmood's motion to reopen was untimely, and (2) Mahmood was barred from adjusting his status for ten years because he had failed to depart the United States by June 14, 2007. In re Mahmood, No. A95 961 997 (Immig. Ct. N.Y. City June 19, 2007), aff'd, No. A95 961 997 (B.I.A. Nov. 29, 2007). The IJ relied on 8 C.F.R. § 1003.23(b)(3) in finding Mahmood's motion to reopen untimely, and on Matter of Shaar, 21 I. & N. Dec. 541 (B.I.A.1996), in concluding that the filing of a motion to reopen does not stay the bar on relief for one who overstays the period of voluntary departure.

Mahmood appealed the IJ's decision to the BIA, arguing that the IJ erred in denying his motion to reopen. In his appeal, Mahmood focused primarily on the IJ's conclusion that failing to depart the United States by June 14 barred his adjustment of status. Mahmood maintained that his filing of a motion to reopen prior to the expiration of the period of voluntary departure tolled that period until the motion could be adjudicated. Mahmood also argued that the IJ erred in refusing to reopen his proceedings sua sponte.

On November 29, 2007, the BIA, in a one-judge per curiam order, dismissed Mahmood's appeal. In re Mahmood, No. A95 961 997 (B.I.A. Nov. 29, 2007). The BIA recounted the two bases articulated by the IJ for denying the motion to reopen, and then stated, "We are in agreement with the decision of the Immigration Judge...." The BIA also noted that the Supreme Court had granted certiorari to decide the question of whether the filing of a motion to reopen automatically tolls the voluntary departure period. Pending that decision, however, the BIA observed that Matter of Shaar remained good law in the Second Circuit, and so Mahmood's filing of a motion to reopen did not toll the period of voluntary departure.

DISCUSSION

"Where, as here, the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA." Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). We examine de novo questions of law and applications of law to undisputed fact. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir.2007).

We review the denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). But we are without jurisdiction to review the Agency's failure to reopen removal proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); see also 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1).

An alien seeking to reopen proceedings must file an appropriate motion to reopen within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). An IJ's administrative order of removal becomes final upon waiver of appeal. See 8 C.F.R. §§ 1003.39, 1240.14; see also Thapa v. Gonzales, 460 F.3d 323, 333 (2d Cir.2006) (concluding that orders of voluntary departure that include alternate orders of removal are final orders for purposes of judicial review). In this case, the IJ's February 14, 2007 order granted Mahmood voluntary departure and also entered an alternate order of removal. Mahmood's motion to reopen was filed on June 5, 2007 and was therefore untimely.

The untimeliness of a motion to reopen may be excused in certain circumstances. See 8 C.F.R. § 1003.2(c)(3); 8 C.F.R. § 1003.23(b)(4). In addition, the Agency has discretion to reopen removal proceedings sua sponte. See 8 C.F.R. § 1003.2(a), 1003.23(b)(1). Because Mahmood's untimely motion to reopen was not excused by any regulatory exception, his motion to reopen could only be considered upon exercise of the Agency's sua sponte authority.

Mahmood petitions this Court for review of the Agency's decision, arguing in part that the Agency erred in failing to exercise its sua sponte authority to reopen his removal proceedings. We have no jurisdiction to consider this claim, because "[t]he decision to grant or deny a motion to reopen ... is [solely] within the discretion of the" Agency. Ali, 448 F.3d at 518; 8 C.F.R. § 1003.2(a), 1003.23(b)(1). But it is at best unclear whether the Agency declined to exercise its sua sponte authority to reopen Mahmood's removal proceedings because it believed that doing so would be futile, as on the Agency's understanding of the law, Mahmood would still be automatically barred from seeking adjustment of status even if the untimeleness of his petition were excused. And where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate.

What, then, is the correct legal framework to apply to Mahmood's motion to reopen his immigration proceedings?

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546, an alien granted voluntary departure must depart within the period prescribed by immigration officials. See 8 U.S.C. § 1229c(b)(2). Failure to depart within that time renders an alien ineligible for many forms of relief, including adjustment of status, for a period of ten years. Id. § 1229c(d)(1).

Last year, in Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), the Supreme Court rejected the claim that the filing of a motion to reopen automatically tolls the period for voluntary departure. Id. at 2319 (finding no "statutory authority" for petitioner's argument that a motion to reopen automatically tolls the voluntary departure period). The Supreme Court also recognized, however, that individuals subject to voluntary departure must retain the right to pursue a motion to reopen. Id. But, under the implementing regulations, departure from the United States effects a withdrawal of a pending motion to reopen. See 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1). This seemingly created a Catch 22. If a petitioner departed in accordance with the period for voluntary departure, he would be unable to pursue his motion...