Qureshi v. Attorney Gen. United States
| Decision Date | 02 February 2017 |
| Docket Number | No. 16-1877,No. 16-1087,16-1087,16-1877 |
| Parties | ABDUL JALIL QURESHI, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of a Decision of the Board of Immigration Appeals
(U.S. Immigration Judge: Honorable Miriam K. Mills)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 4, 2016
Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.
SCIRICA, Circuit Judge Abdul Jalil Qureshi, a citizen of the United Kingdom, was deemed removable from the United States based on two convictions for sexual offenses, and denied discretionary cancellation of removal by an Immigration Judge. Qureshi appealed to the Board of Immigration Appeals and separately moved for remand to withdraw his counseled oral pleadings in which he conceded removability. The BIA denied his motion for remand and dismissed his appeal. Qureshi seeks review of that BIA order, as well as review of a separate BIA order denying his subsequent motion to reconsider. We will dismiss as untimely the petition for review of the BIA's order denying the motion to remand and dismissing the appeal, and we will deny the petition for review of the BIA order denying the motion to reconsider.
Qureshi is a Pakistani national and citizen of the United Kingdom.1 He was admitted to the United States on March 19, 1989, as a lawful permanent resident. On January 20, 1997, Qureshi pled guilty to sexual abuse in the third degree in violation of New York Penal Law ("NYPL") § 130.55. On March 27, 2008, Qureshi pled guilty to forcible touching in violation of NYPL § 130.52. Qureshi was accused of rubbing his groin into the buttocks of two women, one a minor, with both instances taking place at Rockefeller Plaza during the Christmas season.
In September 2011, the Department of Homeland Security served Qureshi with aNotice to Appear before an IJ. The Notice charged him as being removable from the United States under 8 U.S.C. § 1227(a)(2)(A)(ii), based on his two convictions for crimes involving moral turpitude. In March 2012, Qureshi appeared before the IJ and, through counsel, admitted to the allegations in the Notice to Appear and conceded his removability. Qureshi applied for discretionary cancellation of removal under 8 U.S.C. § 1229b(a) based on his long residence in the United States, family ties to his wife and five adult children, and alleged hardship to him and his wife that would result from his deportation. He also claimed he was innocent of the charges to which he had pled guilty, contending the undercover officers involved in each incident fabricated the charges and he was simply in the wrong place at the wrong time.
The IJ found Qureshi removable from the United States based on his counseled concessions. The IJ then found Qureshi did not warrant discretionary cancellation of removal. The IJ noted the seriousness of Qureshi's crimes and suggested they demonstrated a pattern of wrongdoing, while finding Qureshi's claims of innocence not credible. The IJ also found Qureshi failed to establish any hardship to himself or his family because his claim to be in poor health undermined his claim that he needed to remain in the United States to care for his wife.2 None of Qureshi's adult children submitted affidavits in support of his good character and rehabilitation or their need forhis continued presence in the United States. Finally, the IJ observed there was no proof Qureshi had ever filed federal taxes. On balance, the IJ concluded the equities weighed in favor of removing Qureshi to the United Kingdom.
Qureshi appealed the IJ's decision to the Board of Immigration Appeals and moved to remand proceedings to allow him to withdraw his counsel's factual admissions and concession of removability. He contended his 1997 conviction for sexual abuse was facially invalid because the complaint pertaining to the charge does not contain the predicate statutory element of lack of consent. Qureshi also contended his prior counsel provided ineffective assistance by conceding his removability based on an invalid conviction. The BIA rejected his argument on both procedural and substantive grounds. First, the BIA found Qureshi had not complied with the procedural requirements for seeking remand based on ineffective assistance of counsel because he failed to provide evidence that he notified his prior counsel of the complaint he filed against her and provided her an opportunity to respond. Second, the BIA found Qureshi's argument for ineffective assistance unpersuasive because there was not a reasonable likelihood that the outcome of the proceedings would have been different absent counsel's concession of Qureshi's removability. Finally, the BIA affirmed the IJ's denial of discretionary cancellation of removal.
The BIA issued its order on December 11, 2015. Qureshi emailed a petition for review to the Third Circuit CM/ECF help desk on January 11, 2016. A paper copy of the petition for review was received and filed on January 13, 2016.
While his petition for review of the BIA's December 2015 order was pending,Qureshi also filed a timely motion to reconsider with the BIA. The BIA denied the motion, concluding Qureshi merely reiterated arguments the BIA had previously rejected and failed to identify any legal or factual errors, changes in law, or aspects of the case that were overlooked. The BIA issued its order on March 14, 2016, and Qureshi filed a timely petition for review on April 11, 2016.
We have jurisdiction over a timely filed petition for review under 8 U.S.C. §§ 1252(a)(1), (b)(1). A motion to remand is the functional equivalent of a motion to reopen.3 Korytnyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005). We review the BIA's denial of a motion to remand for abuse of discretion, see Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001), and review its underlying factual findings related to the motion for substantial evidence. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). The BIA's denial of a motion to remand may only be reversed if it is "arbitrary, irrational, or contrary to law." Id. at 174 (internal quotation marks omitted). We review the BIA's denial of a motion to reconsider for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).
We lack jurisdiction over Qureshi's petition for review of the BIA's December 2015 denial of his motion to remand and dismissal of his appeal because his petition forreview was untimely filed. By statute, Qureshi was required to file his petition for review no later than 30 days after the BIA issued its final order. 8 U.S.C. § 1252(b)(1). In this case, Qureshi's deadline to file his petition was January 11, 2016.4 In order to be formally filed, Qureshi was required to submit his petition for review in paper format by 4:30 p.m., the time the clerk's office was scheduled to close. See Fed R. App. P. 26(a)(4)(D) (); Third Circuit L.A.R. 113.1(a) (). This deadline is mandatory, jurisdictional, and cannot be extended. See Vakker v. Att'y Gen., 519 F.3d 143, 146 (3d Cir. 2008). Qureshi failed to meet this deadline. His counsel emailed his petition for review to our CM/ECF help desk email address at 10:55 p.m. on January 11, 2016. The clerk's office did not receive a paper copy of the petition—and thus, the petition was not filed—until January 13, 2016.
Qureshi asks us to exempt him from our rules requiring his petition to be filed in paper format and to accept his emailed petition as sufficient and timely. We decline to do so. Even if we were to permit Qureshi to file his petition electronically, an email to the CM/ECF help desk would not constitute an electronic filing. See Fed. R. App. P. 25(a)(2)(D) (); Third Circuit L.A.R. 25.1(a) (); Third Circuit L.A.R. 113(establishing procedures for electronic filing through CM/ECF); Summary of Electronic Filing Requirements, http://www2.ca3.uscourts.gov/legacyfiles/summary%20of%20electronic%20filing.pdf (for case originating documents, including "petition for review of agency order," counsel must, "if case is an emergency, call clerk's office to get permission to e-mail"). Further, we are not authorized to extend the time for filing Qureshi's petition for review to construe his paper filing on January 13, 2016, as timely. Fed. R. App. P. 26(b)(2).5
Even if Qureshi's petition for review of the initial BIA order had been timely filed, we would find the BIA did not abuse its discretion by denying remand. Qureshi's counsel conceded he was twice convicted of crimes involving moral turpitude.6 Qureshi is bound by his counsel's factual admissions and concession of removability absent a showing of egregious circumstances. Calla-Collado v. Att'y Gen., 663 F.3d 680, 683 (3d Cir. 2011); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986). Qureshi has not shown egregious circumstances here. Qureshi's claim that his counsel provided ineffective assistance fails because he cannot show both "competent counsel would haveacted otherwise" and "a reasonable likelihood that the result would have been different if the error[s] . . . had not occurred."7 Fadiga v. Att'y Gen., 488 F.3d 142, 157, 159 (3d Cir. 2007) (internal quotations omitted, alterations in original). Qureshi claims his counsel was ineffective for conceding removability in lieu of challenging the validity of the criminal complaint underlying his 1997 New York conviction. But the BIA "has no authority to invalidate a state court judgment of conviction[,]" Medina Lopez v. Att'y Gen., 425 Fed. App'x 146, 150 (3d Cir. 2011), and we have held convictions are final and valid for...
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