Rais v. Holder

• Decision Date: 16 September 2014
• Docket Number: No. 13–3639.,13–3639.
• Citation: 768 F.3d 453
• Parties: Muhammad Salman RAIS, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

768 F.3d 453

Muhammad Salman RAIS, Petitioner

v.Eric H. HOLDER, Jr., Respondent.

No. 13–3639.

United States Court of Appeals, Sixth Circuit.

Sept. 16, 2014.

Rehearing En Banc Denied Dec. 11, 2014.

ON BRIEF:Marshal E. Hyman, Russell Reid Abrutyn, Marshal E. Hyman & Assoc., PC, Troy, Michigan, for Petitioner. Kelly J. Walls, United States Department of Justice, Washington, D.C., for Respondent.

Before: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.^*

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Muhammad Salman Rais, a native and citizen of Pakistan, is under a final order of removal from the United States. He has twice moved the Board of Immigration Appeals (BIA) to reopen removal proceedings against him without success, requesting that the proceedings be suspended while the United States Citizenship and Immigration Services (USCIS) adjudicates his application for adjustment of status. The BIA denied the first motion on the merits and refused to exercise its sua sponte authority to grant the second, which was untimely and number-barred. Rais now petitions for judicial review of the second denial. For the reasons that follow, however, we DISMISS the petition for want of jurisdiction.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Context.

The legal context of this case—caught, as it is, between two branches of the federal immigration system—potentially clouds apprehension of the questions that it raises. Accordingly, a brief sketch of that context is in order:

Our immigration system empowers two different entities to adjudicate an adjustment of status application. Immigration Judges, subject to review by the [BIA], decide adjustment applications for most noncitizens who are in removal proceedings. Applications from all other noncitizens are decided by USCIS. Pursuant to interim regulations adopted by the Executive Office for Immigration Review in 2006, however, ... [the] adjustment applications [of a small group of ‘arriving aliens'] are within USCIS'[s] exclusive jurisdiction, even though these noncitizens are in removal proceedings [before an IJ or the BIA] or have removal orders [pending] against them.^{[ 1 ]}

When USCIS denies an application for adjustment of status in a final agency action, the noncitizen typically requests relief in federal district court under the Administrative Procedure Act.... But when an Immigration Judge or the [BIA] denies an application in the process of entering a final removal order ... the noncitizen's only recourse is to ask the [BIA] to reopen or reconsider the matter, or to file a petition for review of the Board's order in a [federal] court of appeals.

Marrakchi v. Napolitano, 494 Fed.Appx. 877, 887 (10th Cir.2012) (Lucero, J., dissenting) (citations omitted) (discussing an issue that “[t]he majority d [id] not reach”). Non-citizens are subject to a ten-year bar on re-entry into the United States if they are found to have been unlawfully present here for more than one year. 8 U.S.C. § 1182(a)(9)(B)(i)(II).

B. History.

Against this backdrop, this case presents two discrete claims that a convoluted factual and procedural history similarly threatens to obscure. At an earlier stage of the case, this court briefly recounted much of that history as follows:

Rais was born in Pakistan in 1975. He entered the United States in 2002 to attend school. Shortly after his arrival, Rais married a United States citizen and applied for adjustment of status to lawful permanent residency. He was convicted of domestic violence against his wife, also in 2002. Rais was granted advance parole,^{[ 2 ]} allowing him to leave the United States without abandoning his application for adjustment of status. He was paroled back into this country in 2003. In 2004, [Rais's] application for adjustment of status was denied because [he] and his wife were divorcing. [Rais] married another United States citizen in 2005, and again applied for adjustment of status. That application was denied in 2009 because of [the] domestic violence conviction.^{[ 3 ]} Simultaneously, Rais was placed in removal proceedings [in Detroit, Michigan], in which he also attempted to apply for adjustment of status. The IJ [ordered his removal], determin[ing] that she lacked jurisdiction to grant Rais adjustment of status under 8 U.S.C. § 1255 and applicable implementing regulations,^{[ 4 ]} and the BIA affirmed [on February 13, 2012, (A.R. 180, 204–05) ]. Meanwhile, Rais had filed another application for adjustment of status with [USCIS], which was also denied in 2012.^{[ 5 ]}

Rais v. Holder, 518 Fed.Appx. 476, 476 (6th Cir.2013) (per curiam).⁶

Rais then filed a fourth application for adjustment of status (discounting the request for status adjustment that he directed to the IJ) with USCIS on March 5, 2013, to which he appended nearly one hundred pages of information to evidence his fitness to remain in the United States and to demonstrate the hardship that removal from the country would impose on him and his family. According to that information, Rais and his second wife are both practicing physicians in rural western Michigan; they provide medical care to an underserved population and free medical care to indigent patients; their two children, Rais's mother and three sisters, and the parents and five siblings of Rais's wife all lawfully reside in the United States; and Rais no longer has any family abroad.

Additionally, Rais noted that he has cooperated with the United States as a plaintiff in a qui tam action; observed that conditions in Pakistan would be too dangerous for his children, and especially his daughter, to return there with him; and explained that he and his wife are the primary caretakers of their elderly parents. He also asserted that his ex-wife had submitted a letter in support of his efforts to challenge his domestic-violence conviction. The conviction was set aside for lack of jurisdiction in March 2013.

Rais next filed a motion with the BIA to reopen and administratively close—read: “suspend”—the removal proceedings against him while he awaited USCIS's ruling. He had filed a previous motion to reopen in March of 2012, but was unsuccessful.⁷ In his second motion, filed on March 11, 2013, Rais invoked only the BIA's authority to act sua sponte as a basis for granting him relief, stating the following in relevant part:

This is Dr. Rais's second motion. He filed his first motion when the USCIS ruled that the Immigration Court, and not the USCIS, had jurisdiction over his adjustment of status application. The USCIS later reconsidered its decision and exercised jurisdiction over Dr. Rais's application.

The [BIA] should exercise its sua sponte authority to reopen and administratively close these proceedings because of the compelling humanitarian factors.

(A.R. 23 (citing In re J–J–, 21 I. & N. Dec. 976, 984 (BIA 1997) ); accord A.R. 25 (also citing In re J–J–, 21 I. & N. Dec. at 984 ) (“There are exceptional circumstances in Dr. Rais's case that warrant the sua sponte reopening of his removal proceedings.”)).

On May 15, 2013, the BIA denied the second motion as untimely and number-barred. It observed that the motion had been filed more than a year after the final order of removal had been entered and explained that administrative closure is “not appropriate” after the entry of a final order.⁸ The BIA also reaffirmed its previous determination that USCIS had jurisdiction over Rais's application for adjustment of status and concluded that Rais “ha[d] not demonstrated ‘exceptional circumstances' that would warrant the exercise of [the BIA's] sua sponte authority to reopen” the removal proceedings against him.⁹ According to the BIA, although it “sympathize[d] with the procedural irregularities that [Rais] ha[d] faced,”¹⁰ it would not grant Rais's motion to reopen because USCIS appeared to be proceeding with adjudication of his latest application.

C. The Instant Proceedings.

Rais petitioned this court for judicial review of the BIA's order on May 24, 2013, raising two claims for relief: (1) whether the denial of his second motion to reopen frustrated his statutory right to apply for adjustment of status before USCIS; and (2) whether the denial ran counter to the policy goals of avoiding needless separation of families. He also requested that the court stay his removal from the country and hold his petition in abeyance until USCIS adjudicated his status-adjustment application.¹¹

On October 30, 2013, we granted the first request but denied the second, concluding that USCIS's disposition of Rais's application “w[ould] have no impact on the issues presented [to this court].” We also concluded that Rais would not be prejudiced even if we issued a ruling before USCIS adjudicated his application because Rais could request a stay of removal from the Department of Homeland Security (DHS). We now conclude that we lack jurisdiction to review the BIA's denial of Rais's second motion to reopen.

II. ANALYSIS

A. Statutory Prerequisites.

As of May 11, 2005, the REAL ID Act of 2005, Pub.L. No. 109–13, 119 Stat. 302, governs judicial review of final orders of removal. The act empowers this court to review final orders of removal as long as (1) a petition for judicial review is filed within thirty days of such an order, and (2) the IJ who completed the removal proceedings did so within this circuit. 8 U.S.C. § 1252(a), (b)(1)-(2) ; see id. § 1101(a)(47)(B) (explaining that an order of removal becomes final after the BIA affirms an IJ's order of removal or after the period of time during which appeal to the BIA is available expires, whichever is earlier). This authority extends to the denial of motions to reopen removal proceedings.¹² See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006) (citing, inter alia, Prekaj v. INS, 384 F.3d 265, 268 (6th Cir.2004) (“The denial of a motion to reopen is a final order subject to judicial review.”)). Additionally, the scope of our review is limited to “the administrative record on which the order of removal is based.” Id. § 1252(b)(4)....