Qureshi v. Gonzales

• Decision Date: 27 March 2006
• Docket Number: No. 05-2009.,05-2009.
• Citation: 442 F.3d 985
• Parties: Zulfigar QURESHI, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.3d 985

Zulfigar QURESHI, Petitioner, v.Alberto R. GONZALES, Respondent.

No. 05-2009.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2006.

Decided March 27, 2006.

COPYRIGHT MATERIAL OMITTED

Justin R. Burton(argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Home-land Security Office of the District Counsel, Chicago, IL, Douglas E. Ginsburg(argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.

BAUER, Circuit Judge.

PetitionerZulfigar Qureshi seeks review of the March 15, 2005, decision by the Board of Immigration Appeals(BIA) affirming, without opinion, the denial of a motion for continuance, the denial of a motion to terminate proceedings, and the order of removal issued by the Immigration Judge (IJ) on January 20, 2004.We dismiss as moot the first request for relief and deny the other two.

I.Background

Qureshi entered the United States from Pakistan as a nonimmigrant visitor on April 26, 1995.Although his visa expired on October 26, 1995, he remained in the United States without authorization until the government commenced removal proceedings against him.After receiving a mailed Notice to Appear (NTA) on April 28, 2003, Qureshi appeared for a hearing on May 20, 2003.At the hearing, the IJ gave him a copy of the NTA and granted a continuance until October 24, 2003, so that Qureshi could obtain counsel.

On October 11, 2003, Qureshi married a U.S. citizen, Lamonica Dunn.At the October 24, 2003, removal hearing, Qureshi admitted the factual allegations in the NTA and conceded removability.He challenged neither the service of the NTA nor the validity of the certificate of service.Instead, counsel requested ninety days to investigate the marriage.The judge continued the hearing until January 20, 2004.On October 27, 2003, Qureshi's wife filed an I-130 visa petition on his behalf, seeking to classify him as an immediate relative.¹

At the January 20, 2004, hearing, Qureshi moved for a continuance pending adjudication of the I-130 petition by U.S. Citizenship and Immigration Services (immigration services).The IJ denied the motion for a continuance.Qureshi also challenged, for the first time, the immigration court's jurisdiction on the basis that the certificate of service was not dated.After denying this challenge, the IJ ordered Qureshi removed to Pakistan.The BIA dismissed Qureshi's direct appeal and affirmed the IJ's decision without opinion.Qureshi filed this petition for review.Immigration services denied the I-130 petition on March 17, 2005.

II.Discussion

Qureshi contends that: (1) the IJ erred by denying his motion for continuance; (2) the IJ lacked jurisdiction to conduct removal proceedings because of the omission of the date on the NTA's certificate of service; and (3) the BIA violated due process by affirming, without opinion, the IJ's decision.When the BIA affirms the IJ's decision without opinion, the IJ's decision becomes that of the BIA for purposes of judicial review.Georgis v. Ashcroft,328 F.3d 962, 966-67(7th Cir.2003).

A.Continuance Denial

Qureshi contends that the IJ erred by denying his motion for continuance pending adjudication of the I-130 petition filed by his wife.According to petitioner, the IJ failed: (1) to provide a proper hearing on the motion; (2) to apply the proper standard for adjudicating continuance motions; and (3) to provide a reasoned explanation, consistent with the Immigration and Nationality Act, for denying the motion.The government challenges this Court's jurisdiction to entertain these claims, arguing that the IJ's decision to grant or deny a continuance is a discretionary action that we are excluded from reviewing under 8 U.S.C. § 1252(a)(2)(B)(ii).

We find it unnecessary to address these claims, however, because Qureshi's challenge to the continuance denial has been rendered moot by immigration services' dismissal of the I-130 petition.To qualify for adjudication in federal court, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."Arizonans for Official English v. Arizona,520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170(1997)(quotingPreiser v. Newkirk,422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272(1975))."[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant `any effectual relief whatever' to a prevailing party, the appeal must be dismissed."Church of Scientology of Cal. v. United States,506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313(1992)(quotingMills v. Green,159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293(1895)).A case"is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome."City of Erie v. Pap's A.M.,529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265(2000)(quotingCounty of Los Angeles v. Davis,440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642(1979)).After oral argument in this case, the government moved to dismiss as moot the part of Qureshi's petition for review that challenged the IJ's continuance denial.We agree.

Even if Qureshi were to prevail on his challenge to the continuance denial, the relief requested, within our power to grant, is a remand to the IJ pending adjudication of the I-130 petition.As we were informed at oral argument, and as the government's motion confirms, however, the I-130 petition was denied on March 17, 2005.A remand now would effectuate no change in the case; Qureshi's basis for a continuance no longer exists and the IJ, proceeding with his earlier analysis, would simply order Qureshi removed from the United States.Federal courts have no "power to decide questions that cannot affect the rights of litigants in the case before them."North Carolina v. Rice,404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413(1971)(citingLocal No. 8-6, Oil Workers Int'l Union v. Missouri,361 U.S. 363, 367, 80 S.Ct. 391, 4 L.Ed.2d 373(1960)).Because we are "unable to grant relief affecting the legal rights of the parties" on this issue, petitioner's claim is moot.Davis v. U.S. Dep't of Justice,204 F.3d 723, 727(7th Cir.2000).

The petitioner appealed denial of a continuance pending adjudication of a petition.While the petition for review was pending, the anticipated adjudication transpired, so that the relief requested is no longer available and the petition for review is necessarily moot.The present matter is factually analogous to cases where courts have, on mootness grounds, declined to review petitions seeking a stay of deportation after the alien had already been removed.SeePatel v. Ashcroft,378 F.3d 610, 613(7th Cir.2004);Hose v. I.N.S.,180 F.3d 992, 996(9th Cir.1999).The situation here also resembles that of appellate cases outside the immigration context where denials of continuance and other motions have been found moot.SeeMoore v. J.T. Roofing, Inc.,94 Fed.Appx. 377, 379(7th Cir.2004)(affirming district court's grant of summary judgment and denial of outstanding discovery requests as moot);Taft. v. Vines,83 F.3d 681, 684(4th Cir.1996)(en banc)(finding that motion for continuance in order to conduct discovery was moot);Becker v. I.R.S.,34 F.3d 398, 405-06(7th Cir.1994)(affirming district court's grant of summary judgment and implicit denial on mootness grounds of motion for continuance to proceed with discovery).Here, as in the above cases, the intervening event "mooted the appeal by eliminating the stake" that Qureshi had in the continuance motion.Chan v. Wodnicki,67 F.3d 137, 140(7th Cir.1995).

Qureshi's counsel conceded at argument that the denial of the I-130 petition would "take the legs out of some of my arguments, but not the argument in its entirety."Qureshi argues against mootness, in reply to the dismissal motion, on the basis that he can simply file a new visa petition.This argument is only effective, however, if Qureshi's motion for continuance pending adjudication of the I-130 petition is interpreted as a motion for continuance until "any and all such petitions are decided."Cabalquinto v. I.N.S.,15 F.3d 1083, 1994 WL 35546, at *2(9th Cir.1994)(unpublished).Nothing in the record suggests that Qureshi sought, or even contemplated, such an indefinite continuance.Interpreting Qureshi's motion not as it was made, but instead as requiring a continuance "until any and all petitions a party facing deportation chooses to bring," would effectively ensure that "no one would ever be deported."Id.

Qureshi also contends that the controversy remains "live" because he can file an administrative appeal of the denial of the I-130 petition.This proposition is without merit.First, Qureshi has made no such appeal.Second, if Qureshi now attempted to appeal, the BIA would deny the appeal as time-barred.Under the regulations,

an appeal from a decision of a Service officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer (FormEOIR-29) directly with the office of the Service having administrative control over the record of proceeding within 30 days of the service of the decision being appealed.

8 C.F.R. § 1003.3(a)(2).FormEOIR-29 further specifies that notice of appeal must be filed with immigration services within thirty calendar days from either the date that notice was personally served on, or the date that notice was mailed to, the petitioner.Immigration services denied the I-130 petition on March 17, 2005.Even if Qureshi was not served with the decision until the date of oral argument, January 12, 2006, more than thirty calendar days have elapsed since personal service.²To our knowledge, Qureshi still has not filed an appeal with immigration services.Because any appeal would now be time-barred, we are powerless to provide the requested...