                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2006

Mahmood v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3043




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                                              NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3043


                               ARSHAD MAHMOOD,

                                                   Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                   Respondent




                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                              (Board No. A79-706-405)


                      Submitted under Third Circuit LAR 34.1(a)
                                      on 3/6/06

              BEFORE: ROTH * and GREENBERG, Circuit Judges, and
                       BUCKWALTER ** , District Judge

                             (Opinion Filed July 7, 2006)




                                      OPINION


      *
       Judge Roth assumed senior status on May 31, 2006.
      **
         The Honorable Ronald L. Buckwalter, Senior United States District Court Judge
for the Eastern District of Pennsylvania, sitting by designation.
ROTH, Circuit Judge:

       Arshad Mahmood petitions for review of a final order of the Board of Immigration

Appeals (BIA) affirming, without opinion, the Immigration Judge’s (IJ) grant of

voluntary departure and denial of his request for a continuance. Mahmood is a native and

citizen of Pakistan who received three continuances from the IJ during removal

proceedings, and petitions for review of the IJ’s denial of a fourth continuance. We do not

reach the merits of Patel’s claim that the IJ abused his discretion in denying the fourth

continuance because we conclude that we lack jurisdiction to review an IJ’s denial of a

continuance in a removal proceeding.

                                              I.

       On or about June 1999, Mahmood arrived in the United States without being

inspected, admitted or paroled. On April 21, 2001, Mahmood married an American

citizen and filed a Petition for Alien Relative (Form I-130) and an Application for

Permanent Residence (Form I-485), both of which were terminated by the former

Immigration and Naturalization Service (INS) pursuant to INS Operating Instruction

103.2(o). On February 27, 2003, the INS issued a Notice to Appear. Mahmood appeared

before the IJ on September 4, 2003, conceding removability, and subsequently received

three continuances – the case was first adjourned to October 23, 2003, then adjourned to

November 20, 2003, and finally adjourned to November 24, 2003. The continuations



                                              2
were granted in order to allow Mahmood to file a new Form I-130. When he appeared

before the IJ on November 24, 2003, however, Mahmood submitted a photocopy of the

original, terminated Form I-130 with what Mahmood alleged was a new signature by his

wife who was not present in court. The IJ, in an oral decision, held that the Form I-130

was not “new” because it was merely the same petition that had previously been

terminated by INS, explained that he was not prepared to extend the proceedings for an

indefinite time after having given three prior adjournments, and granted Mahmood 120

days voluntary departure. The IJ further suggested that if the INS wanted to approve the

photocopied petition, Mahmood could seek reopening of his case. The IJ then denied

Mahmood’s request for a fourth continuance in order to obtain new counsel. On May 17,

2005, The BIA affirmed, without opinion, the IJ’s decision.3

       On appeal, Mahmood argues that the IJ judge abused his discretion in denying a

continuance of the proceedings. In particular, Mahmood asserts for the first time that the

IJ should have continued his proceedings pursuant to INS Operations Instruction

103.2(o)4 or in order to allow him to retain new counsel.5


       3
         The petition is for review of the BIA’s final order of removal, which was based on
its decision to defer to the IJ. Thus, we “review the IJ’s decision to assess whether the
BIA’s decision to defer was appropriate.” Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d
Cir. 2001).
       4
        INS Operations Instructions are “internal INS guidelines” and therefore do not
apply to the immigration court. See Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999). Operation Instruction 103.2(o) provides that an alien
may file a written request for renewal of a visa petition terminated under that instruction.
Operation Instruction 103.2(o) does not address the renewal of a Form I-130 after an alien

                                             3
                                             II.

       We lack jurisdiction over the Petition for Review because the grant or denial of a

continuance is a discretionary determination covered by 8 U.S.C. § 1252(a)(2)(B)(ii).

                                             III.

       IJs are designees of the Attorney General and are thus governed by provisions of

law regarding the Attorney General. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158

n.6 (3d Cir. 2004). Hence, the IJ’s denial of a continuance in this case constitutes a

discretionary action of the Attorney General for purposes of 8 U.S.C. § 1252(a)(2)(B)(ii)

(precluding this Court’s jurisdiction to review decisions “of the Attorney General the

authority for which is specified under this subchapter to be in the discretion of the

Attorney General, other than the granting of relief under section 1158(a) of this title”).

The authority from which an IJ’s discretionary denial of a continuance is derived

originates from 8 U.S.C. § 1229(a)(a)(1) (referring to 8 U.S.C. § 1229a(a)(1) which

authorizes IJs to “conduct removal proceedings”) and an implementing regulation at 9

C.F.R. § 1003.29 (providing that “an [IJ] may grant a continuance for good cause

shown”). Because the IJ’s discretionary decision to deny a continuance was authorized



has been placed in immigration court proceedings.
       5
        In Mahmood’s brief to the BIA, he argued that the IJ erred in not accepting the
photocopy of his original, terminated Form I-130. He neglected, however, to mention
Operations Instruction 103.2(o) or ineffective assistance of counsel.
       Mahmood has filed a Motion to Reopen with the BIA, alleging ineffective
assistance of counsel. That motion is pending.

                                              4
by a regulation implementing 8 U.S.C. § 1229a(a)(1), which is contained in subchapter II

of Chapter 12 of Title 8, we hold that § 1252(a)(2)(B)(ii) precludes our review of the IJ’s

denial of Mahmood’s request for a fourth continuance. We will thus deny the petition.




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