                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2495




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                                                                 NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 06-2495
                                     __________

                                 ASIM SHAHZAD,
                                          Petitioner,

                                         vs.

                            ATTORNEY GENERAL OF
                             THE UNITED STATES,
                                         Respondent.
                                 __________

                        On Petition for Review of Order of the
                            Board of Immigration Appeals
                                BIA No. A73-631-918
                         Immigration Judge: Eugene Pugliese
                                     ___________

                          Submitted on November 28, 2007
                                   ___________

              Before: BARRY, FUENTES and GARTH, Circuit Judges,
                       (Opinion Filed: December 12, 2007)


                                    ___________

                                     OPINION
                                    ___________

GARTH, Circuit Judge:

      Asim Shahzad (“Shahzad”) petitions this Court for review of the Board of
Immigration Appeals (“BIA”) order of March 28, 2006, affirming and adopting the

Immigration Judge’s (“IJ”) decision, which denied Shahzad’s motion to reopen to apply

for adjustment of status on the grounds that it was untimely.

       We find that the BIA and IJ did not abuse their discretion in denying Shahzad’s

motion to reopen and therefore deny the petition for review.




                     I. FACTUAL AND PROCEDURAL HISTORY

       A native and citizen of Pakistan and born November 16, 1967, Shahzad entered the

United States on April 28, 1996 on a B-2 six-month visa and did not depart as required.

His parents, Mushtaq Ahmed and Niaz Begum, filed separate petitions (Forms I-130) on

his behalf on January 28, 1998. The visa petitions were approved on July 27, 1998 but a

visa did not issue because Shahzad’s parents were only permanent residents then and not

yet naturalized U.S. citizens, and as a result, Shahzad’s petition date did not fall within

the appropriate cut-off date for eligibility.1

       After the terrorist attacks of September 11, 2001, the U.S. Government established

the National Security Entry-Exit Registration System, which required men at least 14

years old who were citizens from predominantly Muslim countries (including Pakistan) to

register with the Immigration and Customs Enforcement. When Shahzad voluntarily

       1
        According to the Visa Bulletin for August 2005, visas were issued to unmarried sons
and daughters of permanent residents with petition dates before January 22, 1996. For
unmarried sons and daughters of U.S. citizens, the applicable date was April 8, 2001. Admin.
Rec. (“A-R”) at 29.

                                                 -2-
complied with the registration, on February 4, 2003, the Department of Homeland

Security served him with a Notice to Appear, charging him with removal on grounds of

his overstay. He was detained for two days, but subsequently released on a $2,500 bond.

Shahzad filed an asylum petition, which he subsequently withdrew. On January 11, 2005,

the IJ issued a removal order, but allowed Shahzad until May 11, 2005 to voluntarily

depart the United States. A-R at 135-136.

       On August 9, 2005, Shahzad filed a motion to reopen proceedings before the IJ.

He argued that he did not depart voluntarily by May 11, 2005 “[d]ue to a serious medical

condition. . . .” A-R at 123 (“The alien’s failure to depart was caused by a serious illness

which made it dangerous for the alien to fly. The alien suffers from a cerebral

hemorrhage and has been under a doctor’s care for many years. This condition makes

him subject to seizures and periods of unconscious.”). He also noted that he was eligible

for adjustment of status, which would eliminate the basis for his removal, because his

father had become a naturalized U.S. citizen on July 29, 2005 such that his approved visa

petition was made current.

       The IJ stated that Shahzad had “not shown that his medical condition is so severe

as to prevent him from leaving the United States.” A-R at 117. The IJ also found that

Shahzad had “not shown exceptional circumstances to excuse his failure to depart. . . .”

Id.

       Shahzad filed a timely appeal to the BIA, arguing that the IJ erred in finding that



                                             -3-
his medical condition was not severe enough and that cerebral hemorrhage prevented him

from departing voluntarily. Consequently, Shahzad argued that the IJ should have

granted his motion to reopen and allowed him to apply for adjustment of status on the

basis of his father’s naturalization. A-R at 10-14.

       On March 28, 2006, a single-member panel of the BIA affirmed and adopted the

IJ’s decision. The BIA found that Shahzad’s August 9, 2005 motion was filed more than

90 days after the IJ’s initial January 11, 2005 order. The BIA also held that there is no

“exceptional circumstances” provision under 8 U.S.C. § 1229c(d), which bars an alien in

violation of a voluntary departure order from applying for certain forms of discretionary

immigration relief (including cancellation of removal and adjustment of status).

       In his petition for review, Shahzad argues that the BIA and the IJ abused their

discretion in denying his motion to reopen because he was eligible to adjust his status on

the basis of his father’s naturalization. The Government responds that the administrative

agencies did not abuse their discretion since Shahzad’s motion to reopen was filed more

than 90 days after the IJ’s initial voluntary departure order.




                 II. JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction under 8 U.S.C. § 1252(a)(1), which provides for judicial

review of final orders of removal. See Romanishyn v. Atty. Gen., 455 F.3d 175, 180 (3d

Cir. 2006). Where, as here, the Board adopts the immigration judge’s decision and adds


                                             -4-
its own reasons, this Court reviews both decisions. Fadiga v. Atty. Gen., 488 F.3d 142,

153, n. 16 (3d Cir. 2007). Our standard of review for questions of law is de novo . Id. at

153-54. We review findings of fact for substantial evidence and, therefore, may not set

them aside unless a reasonable fact-finder would be compelled to find to the contrary.

Gabuniya v. Atty. Gen., 463 F.3d 316, 321 (3d Cir. 2006). The denial of a motion to

reopen or reconsider is a discretionary issue, which we review for abuse of discretion.

See Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir. 2002). “Under the abuse of

discretion standard, the Board’s decision must be reversed if it is ‘arbitrary, irrational, or

contrary to law.’” Id. at 174.



                                     III. DISCUSSION

       The two questions in this appeal are (1) whether the BIA and IJ abused their

discretion in denying Shahzad’s motion to reopen on grounds that it was untimely and

(2) whether Shahzad is statutorily barred from applying for adjustment of status.



                                              A.

       8 U.S.C. § 1229a(c)(7)(C)(i) requires that a “motion to reopen shall be filed

within 90 days of the date of entry of a final administrative order of removal.” A decision

becomes final “upon waiver of appeal or upon expiration of the time to appeal if no

appeal is taken,” whichever comes first. 8 C.F.R. § 1003.39. Since Shahzad waived his


                                              -5-
right to appeal the IJ’s voluntary departure order, the operative start date for the 90-day

period to file the motion to reopen was January 11, 2005.

       The relevant dates in this case are not in dispute. Shahzad did not file a motion to

reopen until August 9, 2005. As the BIA and IJ correctly found, this filing date was

clearly more than 90 days after the IJ’s order and therefore Shahzad’s motion was

untimely.



                                             B.

       Turning to the issue of whether Shahzad is barred from applying for adjustment of

status, the Government argues that the BIA and IJ correctly found that 8 U.S.C. §

1229c(d)(1)(B) bars him for a period of 10 years from applying for adjustment of status

because Shahzad did not depart the United States by May 11, 2005.

       The BIA and the IJ did not abuse their discretion in finding that Shahzad’s

medical condition did not prevent him from voluntarily departing from the United States.

The BIA reasoned that “the likelihood of the respondent suffering a seizure on the

aircraft [wa]s not clear from the doctor’s letter.” A-R at 2. Though the journey would be

potentially difficult, Shahzad’s failure to depart was voluntary. Since 8 U.S.C. §

1229c(d)(1) applies to any alien who “voluntarily fails to depart,” it extends to Shahzad.

While Shahzad has repeatedly argued throughout these proceedings that his medical

condition constitutes exceptional circumstances such that the statute does not apply to


                                             -6-
him, his argument is based on a version of the statute repealed in 1996, as the BIA

correctly noted. See, e.g., Barrios v. Att’y Gen., 399 F.3d 272, 272 (3d Cir. 2005). The

current version of the statute does not provide for such exceptions.



                                  IV. CONCLUSION

       In conclusion, we find that the BIA and IJ did not abuse their discretion in denying

Shahzad’s motion to reopen and therefore we deny the petition for review.




                                            -7-
