Panjwani v. Gonzales

• Citation: 401 F.3d 626
• Decision Date: 28 February 2005
• Docket Number: No. 03-61034.,03-61034.
• Parties: Nizar PANJWANI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 626

401 F.3d 626

Nizar PANJWANI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 03-61034.

United States Court of Appeals, Fifth Circuit.

February 28, 2005.

Jonathan H. Lamb, Houston, TX, for Petitioner.

Ernesto Horacio Molina, Jr., Thomas Ward Hussey, Dir., Laura F. Laemmle, Alberto R. Gonzales, U.S. Dept. of Justice, OIL, Washington, DC, Hipolito Acosta, U.S. INS, Houston, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition from the Board of Immigration Appeals.

Before BARKSDALE, GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Nizar Panjwani petitions this Court to review the decision of the Board of Immigration Appeals ("BIA") denying his untimely motion to reopen his deportation proceedings. For the reasons set forth below, the petition is DENIED.

BACKGROUND

Panjwani, a Muslim and native citizen of India, entered the United States under a false name and using a false passport. Panjwani was charged with excludability under the Immigration and Nationality Act ("INA") § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A) (1997); INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i)(1997), as an alien who procured admission into this country through fraud and misrepresentation. While Panjwani conceded the charges against him, he contended that he was entitled to asylum and withholding of removal.

In May 1998, at Panjwani's first hearing on the merits of his asylum and withholding of removal claims, the immigration judge ("IJ") determined that Panjwani had not filed a timely application for asylum, and therefore denied him relief.¹ The IJ also found that Panjwani's case did not satisfy the requirements for establishing withholding of removal. Nevertheless, the IJ did grant Panjwani voluntary departure from the United States. Panjwani timely appealed the decision of the IJ to the BIA. The BIA determined that while Panjwani failed to timely submit his asylum application, there were "extraordinary circumstances" that prevented him from adhering to the applicable statutory deadlines, and therefore reversed the decision of the IJ, remanding Panjwani's case to the IJ.²

On remand, Panjwani presented to the IJ the merits of his asylum and withholding of removal claims. Specifically, Panjwani asserted that his native country of India was rife with violent conflict between Hindus and Muslims. Panjwani argued that because many of these conflicts ultimately resulted in the killing of Muslims at the hands of Hindus, and because many of these crimes were committed in his hometown of Bombay (and allegedly with the assistance of local police officers), he feared persecution due to his religious status as a Muslim. The IJ determined that Panjwani failed to establish eligibility for asylum and further found that Panjwani failed to carry the heavier burden of demonstrating his entitlement to withholding of removal. Again, however, Panjwani was granted voluntary removal to leave the United States. Panjwani then filed a notice of appeal with the BIA.

The BIA ultimately determined that Panjwani failed to properly file a brief or statement in connection with his notice of appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E)(2003).³ Panjwani then filed a motion to reopen his case with the BIA based on alleged changed conditions that had occurred in India.⁴ The BIA, however, denied Panjwani's motion, noting that it had been filed out of time under 8 C.F.R. § 1003.2(c)(3)(ii)(2003) and concluding that Panjwani had not satisfied the regulatory exception for the late filing. Panjwani timely filed the instant appeal.

DISCUSSION

I. Whether this Court has appellate jurisdiction to review Panjwani's untimely motion to reopen his deportation proceedings.

Although not an issue initially raised by either party, this panel requested the parties to brief whether this Court, under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), has jurisdiction to review the BIA's denial of Panjwani's untimely motion to reopen. Generally, this Court has jurisdiction to review appeals of deportation proceedings under § 106 of the INA, 8 U.S.C. § 1105a (1994), as amended by § 309(c)(4) of IIRIRA. Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 303 (5th Cir.1999). IIRIRA's transitional rules generally apply to deportation cases commenced before IIRIRA's general effective date of April 1, 1997, and where the BIA's final order of exclusion or deportation was entered on or after October 30, 1996. See IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, 625-27; see also Lopez De Jesus v. INS, 312 F.3d 155, 158 (5th Cir.2002). Because Panjwani's deportation proceedings commenced in March 1997, and the BIA order made the subject of this appeal was entered in November 2003, Panjwani's case is governed by IIRIRA's transitional rules.

Under § 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under § 106(a) of the INA, 8 U.S.C. § 1105a (1994), unless a specified exception applies. The specified exceptions preclude judicial review of, inter alia,"any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of the [INA] )." IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626.

The Government argues the untimely filing of a motion to reopen restricts the scope of this Court's review. Specifically, the Government contends that because an alien is required to exhaust his available administrative remedies before seeking review of a deportation order, 8 U.S.C. § 1105a(c) (1994),⁵ the failure to do so deprives this Court of jurisdiction over the underlying claims. The Government correctly observes that the relevant federal regulations require a party to file a motion to reopen "no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 1003.2(c)(2). Panjwani's motion to reopen was filed 92 days after the order of deportation was entered, and therefore, according to the Government, Panjwani failed to exhaust his administrative remedies, thus precluding this Court's review of the BIA's final order.

Panjwani maintains this Court has jurisdiction over his appeal, notwithstanding the untimely nature of his motion to reopen. Panjwani argues the regulations specifically provide an exception in these precise circumstances, noting that motions to reopen based on changed country conditions in the country of nationality or deportation are considered timely filed even though such a motion was filed outside the 90-day limit. See INA § 240(c)(6)(C)(ii), 8 U.S.C. § 1229a(c)(6)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii) (providing that petitioner must establish that evidence of such changed conditions is "material and was not available and could not have been discovered or presented at the previous hearing"). Panjwani contends he presented the BIA with sufficient evidence establishing changed country conditions in India, thus satisfying the exception, which, in turn, made his motion to reopen timely.

Panjwani further suggests that were we to conclude we lack appellate jurisdiction to review his appeal, this Court would essentially cut off review in all situations where: (1) a petitioner argues that the "changed country conditions" exception expressly provided for by the regulations transforms an untimely motion to reopen into a timely one; and (2) the BIA subsequently rejects that argument. To so conclude, argues Panjwani, would lead to a result not intended by Congress when it enacted IIRIRA, which by its terms contemplates Fifth Circuit review of "final orders of deportation." See 8 U.S.C. § 1105a(a) (1994).

The jurisdictional issue before us is one of first impression in this Circuit. While this Court has previously determined that we have jurisdiction under IIRIRA's transitional rules to review the BIA's denial of a petitioner's timely motion to reopen deportation proceedings, Lara v. Trominski, 216 F.3d 487, 495-96 (5th Cir.2000), we have only peripherally explored the bounds of this Court's jurisdiction to review the denial of a motion to reopen deportation proceedings when such a motion is untimely.

For instance, in Wang v. Ashcroft, 260 F.3d 448 (5th Cir.2001), the petitioner filed an untimely motion to remand. The petitioner argued that the BIA abused its discretion by not exercising its power under 8 C.F.R. § 3.2(a) to reopen his case upon its own motion.⁶ Id. at 452. The court first set out to decide whether the petitioner failed to exhaust his administrative remedies by not requesting the BIA to exercise its authority under § 3.2(a). The court observed that section 106(c) of the INA "states that unless an alien exhausts his available administrative remedies, the deportation order shall not be reviewed by any court." Id. (citing 8 U.S.C. § 1105a(c) (1994)). The court in Wang noted that an alien's failure to exhaust such remedies serves as a jurisdictional bar to consideration of the issue. Id. The court concluded, therefore, that by not taking the initiative to implore the BIA to review the untimely motion to remand, the petitioner "fail[ed] to exhaust his administrative remedies with respect to an issue when the issue [was] not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen." Id. at 452-53 (citing Goonsuwan, 252 F.3d at 388-89).

The petitioner in Wang argued that because the BIA is empowered to act sua sponte to reopen a deportation case, this Court necessarily has jurisdiction to review the BIA's decision not to so act under an abuse of discretion standard of review. Id. at 451. The Wang court disagreed, concluding that while courts and agencies have a "full panoply" of powers which they may invoke sua sponte, a party seeking to challenge on appeal the failure of...