                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2009

Tahiraj-Dauti v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1925




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-1925
                                     ____________

                               ZAIM TAHIRAJ-DAUTI;
                              MERITA TAHIRAJ-MAMO,

                                            Petitioners,

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.

                                     ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                       (Board No. A76-821-259 & A76-821-263)
                      Immigration Judge: Honorable Roger Pauley
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 9, 2009

    Before: CHAGARES, HARDIMAN, Circuit Judges and ELLIS,* District Judge

                                 (Filed: April 29, 2009)
                                     ____________

                              OPINION OF THE COURT
                                   ____________


      *
        The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
HARDIMAN, Circuit Judge.

       Zaim Tahiraj-Dauti and Merita Tahiraj-Mamo, husband and wife, petition for

review of the orders of the Board of Immigration Appeals denying their requests for

reversal of execution of deportation, which were treated as motions to reopen. We will

deny their petitions for review.

                                               I.

       Because we write exclusively for the parties, who are familiar with the facts and

proceedings below, we will not revisit them here. We review the BIA’s denial of a

motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324 (1992);

Sevoian v. Ashcroft, 290 F.2d 166, 170-71 (3d Cir. 2002). Such motions are disfavored as

a matter of law, and the alien who seeks to reopen bears a “heavy burden” of proof. INS

v. Abudu, 485 U.S. 94, 110 (1988); see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004) (holding that discretionary decisions of the BIA will not be disturbed unless they

are found to be arbitrary, irrational, or contrary to law).

                                               A.

       Tahiraj-Dauti was involuntarily removed from the United States on February 6,

2007. He filed a motion to reopen on February 9, 2007, in spite of a regulation which

provides:

       a motion to reopen or a motion to reconsider shall not be made by or on
       behalf of a person who is the subject of exclusion, deportation, or removal
       proceedings subsequent to his or her departure from the United States. Any
       departure from the United States, including the deportation or removal of a

                                               2
       person who is the subject of exclusion, deportation, or removal proceedings,
       occurring after the filing of a motion to reopen or a motion to reconsider,
       shall constitute a withdrawal of such motion.

8 C.F.R. § 1003.2(d). Finding § 1003.2(d) a complete bar to Tahiraj-Dauti’s motion to

reopen, the BIA deemed the motion withdrawn consistent with the language of the

regulation. In an effort to avoid the absolute bar of § 1003.2(d), Tahiraj-Dauti argues that

the manner in which he was removed from the United States violated his constitutional

right to due process and should negate the fact that he was not present in the country at

the time his motion to reopen was denied.1 We need not address this issue because the

regulation draws no distinction between voluntary and involuntary departures, and

commands that “[a]ny departure . . . shall constitute a withdrawal of such motion.” 8

C.F.R. § 1003.2(d).

                                             B.

       Tahiraj-Mamo was still present in the country at the time her motion to reopen was

denied, and thus she was not barred by 8 C.F.R. § 1003.2(d). Nevertheless, her petition is

entirely derivative of her husband’s claim. Because Tahiraj-Dauti’s claim fails, so too

must Tahiraj-Mamo’s petition for review be denied. See, e.g., Khourassany v. INS, 208




       1
        Tahiraj-Dauti correctly notes that had he been present in the United States, his
approved I-140 petition could have allowed the BIA to reopen his case and adjust his
status. Unfortunately for Tahiraj-Dauti, the timing of his motion is a complete bar to this
claim.

                                             3
F.3d 1096, 1100 (9th Cir. 2000) (holding that if the predicate petition fails, any derivative

action must fail).

                                             C.

       Finally, Petitioners argue that they were prevented from fully developing their

claims before the BIA. But Tahiraj-Dauti does not cite any evidence which would vitiate

the application of 8 C.F.R. § 1003.2(d), which we have held is a bar to his motion to

reopen. Nor has Tahiraj-Mamo cited any evidence that her motion to reopen was not

derivative of her husband’s motion. Accordingly, we hold that Petitioners are not entitled

to relief on this ground.

       For the foregoing reasons, we will deny the petitions for review.




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