                                                      NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 10-2739
                                     _____________

                                   SAFDAR ALI SHAH,
                                            Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent
                             _______________

                        On Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 (BIA 1: A090-627-747)
                       Immigration Judge: Hon. Dorothy A. Harbec
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 1, 2016

              Before: AMBRO, JORDAN and SCIRICA, Circuit Judges.

                                   (Filed May 10, 2016)
                                    _______________

                                       OPINION ∗
                                    _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Safdar Ali Shah, a native and citizen of Pakistan, petitions for review of a Board

of Immigration Appeals (“BIA”) decision dismissing his appeal from an order of an

Immigration Judge (“IJ”) that concluded, among other things, that he was ineligible for

cancellation of removal under 8 U.S.C. § 1229b(b) due to his lack of 10 years’

continuous physical presence in the United States. We will deny the petition.

I.     B ACKGROUND

       Shah asserts that he first entered the United States by crossing the Mexican border

without inspection in April 1981. Upon being granted advanced parole, 1 he made several

trips back to Pakistan.

       On July 29, 2009, the Department of Homeland Security (“DHS”) issued a Notice

to Appear (“NTA”) in immigration court to defend against charges of removability under

8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien not in possession of a valid, unexpired

immigration visa or entry document. Through his counsel, Shah conceded the legal and

factual bases for his removal and requested cancellation of removal.

       On December 22, 2009, the IJ denied Shah’s cancellation application on the basis

that (1) Shah failed to demonstrate the requisite 10 years’ continuous physical presence in

the United States to establish cancellation eligibility; (2) he did not show that he had



       1Advanced parole allows an alien to “temporarily … remain in the United States
pending a decision regarding his application for admission.” Cheruku v. Att’y Gen., 662
F.3d 198, 201 n.2 (3d Cir. 2011) (internal quotation marks omitted). “When used to enter
the United States … after travel, this amounts to permission … for ingress into the
country but is not a formal admission.” Id. (internal quotations omitted).

                                              2
qualifying relatives; and (3) even assuming he had a qualifying relative, Shah did not

demonstrate the necessary exceptional and extremely unusual hardship that his relative

would suffer if Shah were removed to Pakistan. Accordingly, the IJ denied Shah’s

application for cancellation of removal, and ordered him removed to Pakistan.

       On the question of continuous presence, the IJ noted that Shah listed several

departures from the United States on his cancellation application, and review of Shah’s

passport, together with Shah’s own testimony, showed that he was out of the country

from October 24, 2002 until February 6, 2003, which amounts to a break in his physical

presence in the country of 105 days. The IJ concluded that, because Shah had been

absent from the country for more than 90 days, by operation of statute he could not

qualify for cancellation relief by showing a “continuous presence in the United States of

at least 10 years with no breaks.” (AR at 52.)

       Shah appealed the IJ’s decision to the BIA, but did not challenge the finding that

he departed the United States for a period in excess of 90 days. Instead, he argued that a

departure in excess of 90 days does not necessarily break continuous physical presence

and that, because his departures did not exceed 180 days in the aggregate, he can

establish the required continuous physical presence for cancellation relief. The BIA

rejected that argument based on a reading of 8 U.S.C. § 1229b(d)(2)’s plain language and

found that the IJ properly determined that Shah failed to establish eligibility for




                                              3
cancellation of removal. It therefore dismissed Shah’s appeal. This timely petition for

review followed. 2

II.    DISCUSSION3

       A.     STANDARD OF REVIEW

       We review the BIA’s determinations of law de novo, but “subject to established

principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We

decide the petition “only on the administrative record on which the order of removal is

based,” 8 U.S.C. § 1252(b)(4)(A), and defer to the administrative findings of fact as

“conclusive[,] unless any reasonable adjudicator would be compelled to conclude to the

contrary,” 8 U.S.C. § 1252(b)(4)(B). Where, as here, the BIA issues its own decision on

the merits and not a summary affirmance, we review its decision, rather than that of the

IJ, Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009), provided, however, that we

review the IJ’s decision to the extent that the BIA relied upon it, Wang v. Att’y Gen., 423

F.3d 260, 267 (3d Cir. 2005). The BIA has a corresponding responsibility to review the

IJ’s findings of fact only for clear error. 8 C.F.R. § 1003.1(d)(3)(i).

       2 This case was held in abeyance for several years pending adjudication by the
United States Citizenship and Immigration Services (USCIS) of several immediate
relative visa petitions, all of which were ultimately denied.
       3 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We exercise
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Although the jurisdictional statute strips
us of jurisdiction over “any judgment regarding the granting of relief under section …
1229b,” 8 U.S.C. § 1252(a)(2)(B)(i), we have interpreted that provision to apply only to
discretionary aspects of the denial of cancellation of removal. See Mendez-Moranchel v.
Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003). Satisfaction of the continuous residency
requirement is not such a discretionary decision and is thus subject to our review. See
Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005); Okeke v. Gonzales, 407
F.3d 585, 588 n.4 (3d Cir. 2005).

                                              4
       B.     SHAH’S ELIGIBILITY FOR CANCELLATION OF REMOVAL

       Shah is removable from the United States. His lack of “a valid unexpired

immigrant visa, reentry permit, border crossing identification card, or other valid entry

document” at the time of application for admission renders him inadmissible, and thus

removable, from the United States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I) (lack of required

documents renders alien inadmissible); 8 U.S.C. § 1227(a)(1)(A) (alien who was

inadmissible at time of entry is deportable). He does not contest that fact.

       Having conceded removability, the sole relief that Shah now seeks is cancellation

of removal, and he bears the burden of showing that he is eligible for it. Pareja v. Att’y

Gen., 615 F.3d 180, 185 (3d Cir. 2010). For a nonpermanent resident to be eligible for

cancellation of removal, he must establish that he meets four requirements: continuous

physical presence in the United States of not less than 10 years; good moral character; an

absence of certain disqualifying criminal convictions; and that removal would result in

exceptional and extremely unusual hardship to a qualifying relative who is a United

States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1).

       By statute, an alien has failed to maintain a continuous presence in the United

States if he “has departed from the United States for any period in excess of 90 days or

for any periods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). For

purposes of Shah’s continuous presence requirement, the relevant period ended on

July 29, 2009, when Shah was served with an NTA. See 8 U.S.C. § 1229b(d)(1)

(providing, in part, that “any period of … continuous physical presence in the United

States shall be deemed to end … when the alien is served a notice to appear”).

                                             5
       On his cancellation application, Shah listed several departures from the United

States, and review of his passport showed that he was out of the country for 105 days

from October 24, 2002 until February 6, 2003, thus constituting a break of more than 90

days in his physical presence in the country. As noted above, Shah does not contest the

IJ’s finding that he departed the country for a period exceeding 90 days. In his opening

brief to this Court, he did not include the continuous-physical-presence requirement in his

statement of the issues presented on appeal, nor did that brief offer any “supporting

arguments and citations” to challenge the BIA’s finding that he did not satisfy that

requirement. Simmons v. Phila., 947 F.2d 1042, 1065 (3d Cir. 1991); see also Fed. R.

App. P. 28(a). Shah has thus waived that issue on review. 4 See, e.g., FDIC v. Deglau,



       4 Shah did raise the continuous physical presence issue in his reply brief, but that
was insufficient to preserve the issue. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003)
(holding that a party’s failure to raise an issue in the opening brief waived the issue even
though the party raised the issue in his reply brief). Moreover, even if Shah could raise
his arguments for the first time in a reply brief, they would still be unavailing, as there
was a break of more than 90 days in his physical presence in the United States. He has
therefore failed the first requirement for cancellation of removal, rendering him ineligible
for such relief under 8 U.S.C. § 1229b. Relying heavily on Matter of Arrabally, 25 I. &
N. Dec. 771 (BIA 2012) – albeit only as “instructive” analogous authority (Reply Br. 5) –
Shah essentially argues that the 90-day period should have been tolled because he
departed the country with advanced parole. But the continuous presence requirement
provides, in plain statutory terms, that “[a]n alien shall be considered to have failed to
maintain continuous physical presence in the United States … if the alien has departed
from the United States for any period in excess of 90 days … .” 8 U.S.C. § 1229b(d)(2)
(emphasis added). As Shah correctly points out, that 90-day period is “not absolute”
inasmuch as 8 U.S.C. 1229b(b)(2) creates special tolling exceptions for battered
individuals (Reply Br. 2), but Congress’s own creation of a narrow exception does not
authorize us to create other exceptions. Because Congress “has directly spoken to the
precise question at issue[,] … both the agency and the court must give effect to the plain
language of the statute.” Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008)
(internal quotation marks omitted).

                                             6
207 F.3d 153, 169 (3d Cir. 2000) (reaffirming that failure to raise an issue in the opening

appellate brief waives the issue).

       Continuous physical presence is a “threshold requirement” that a petitioner must

satisfy to qualify for cancellation of removal. Okeke v. Gonzales, 407 F.3d 585, 588 (3d

Cir. 2005). Because Shah waived any challenge to the BIA’s conclusion that he was not

physically present in the United States for a continuous period of no less than 10 years,

that issue is dispositive. Shah is simply ineligible for cancellation of removal under 8

U.S.C. § 1229b(b)(1). 5

III.   CONCLUSION

       For the foregoing reasons, we will deny Shah’s petition for review.




       5 Because Shah’s waiver of the continuous physical presence finding is
dispositive, we need not address any of the other bases for the BIA’s denial of his
application for cancellation of removal, including whether removal would result in
exceptional and extremely unusual hardship to a qualifying relative. See Immigration &
Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (“As a general rule
courts and agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”). Nevertheless, the government’s decision to
remove Mr. Shah after allowing him to build a life in this country for decades is, to put it
mildly, troubling. His illegal status was no mystery, and his presence here was formally
sanctioned by the grant of advanced parole (see supra n.1). Despite that, immigration
officials are now exercised about his being out of the United States once for 15 days
longer than he should have been. (And, on that occasion, it was only because he was ill
and could not travel. See AR at 369.) That is the basis – the sole basis disclosed – on
which the government has decided to tear a family apart by sending Shah back to
Pakistan. Of all the cases in which to invest limited enforcement resources, this choice
must be among the strangest, and the results are very sad indeed. Those with the power
to consider it again should do so.

                                             7
