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


10-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3286




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                             __________

                                 No. 05-3286
                                 __________

                        SEAN NICHOLAS THOMAS
                                        Petitioner

                                       v.

            ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent


                       On Petition for Review from the
                        Board of Immigration Appeals
                          (BIA No. A26-142-057)

         Initially Docketed as an Appeal from EDPA No. 04-cv-03513
                Prior to the Enactment of the Real ID Act of 2005

                  Immigration Judge: Charles M. Honeyman


                 Submitted Under Third Circuit LAR 34.1(a)
                            September 28, 1006
            Before: RENDELL, ROTH, GIBSON*, Circuit Judges.

                           (Filed October 19, 2006)

                                 __________

                         OPINION OF THE COURT
                               __________

* Honorable John R. Gibson, Judge of the United States Court of Appeals for the
  Eighth Circuit, sitting by designation.
RENDELL, Circuit Judge.

              Sean Thomas petitions for review of the denial of his motion to reopen and

reconsider his eligibility for relief from removal. For the reasons provided below, we will

grant Thomas’s petition and remand this case for proceedings consistent with this

opinion.

                                              I.

       Thomas appeals an order by the Bureau of Immigration Affairs denying as

untimely his motion to reopen his case. Having conceded he is statutorily removable on

account of a gun conviction, Thomas had initially petitioned the BIA for relief from

removal in light of his pending application for an immigrant visa (“the I-130”) and his

application for naturalization which was also pending. The BIA denied the motion, but it

stated that in “the event that the Department [of Homeland Security] approves either the

respondent’s application for naturalization or the visa petition, he may file a timely

motion to reopen on that basis.” The BIA thus made clear that, but for the absence of an

approved I-130 or naturalization application, Thomas would have a claim deserving to be

heard on the merits. Thomas had 90 days to move the BIA to re-open the case, 8 C.F.R. §

1003.2(c)(2), but lacked reason to do so until either application was approved.

       The I-130 was approved on May 21, 2004. Counsel was notified by the

Department of Homeland Security (DHS) on May 26, 2004. He filed a motion to reopen




                                              2
with the BIA the next day, May 27, 2004, and the BIA received the motion on the 28th.

The BIA denied the motion as untimely, the 90-day deadline having elapsed on the 27th.

                                            II.

       The nature of the relationship between DHS and the BIA is such that applicants

seeking adjustment of status from the BIA are often dependent on the actions (not to

mention the alacrity) of a separate agency, DHS. In many cases, applications for forms

such as the I-130 may receive approval well after such approval outlives its usefulness to

the petitioner. In cases such as these, the role of the BIA and the Court of Appeals is

necessarily circumscribed.

       On the instant facts, however, approval of the I-130 occurred prior to the 90-day

deadline. This case thus falls into a far narrower category, and attempts to reopen

premised on visa applications approved after the 90-deadline are not before us. In this

case, the DHS approval arrived days before the deadline, and there is no dispute that the

loss of time between approval and notification of the attorney was due to DHS. The

attorney upon being notified reacted and contacted the BIA as quickly as possible. There

is no contention by the Government that Thomas’s counsel acted with anything less than

the utmost haste. Moreover, the BIA had previously expressed its willingness to consider

petitioner’s claim, and noted that an approved application would allow the case to be

reopened if deemed timely.




                                             3
       We note that the BIA Practice Manual deems a motion filed when it is received by

the BIA, not when it is mailed. See BIA Practice Manual § 3.1(a)(I) (2004). However,

the BIA does not interpret the 90-day deadline as being ironclad. See BIA Practice

Manual § 3.1(b)(iv) (2004) (“Postal or delivery delays do not affect existing deadlines,

nor does the Board excuse untimeliness due to such delays, except in rare

circumstances.”) (emphasis added); BIA Practice Manual § 4.7(d) (2004) (“The Board

has the discretion to consider a late-filed brief, but does so rarely.”). It is not apparent

from the BIA’s cursory opinion in this matter whether such consideration was given in

this case to the delay from DHS, the actions taken by counsel, or the apparently

meritorious claim Thomas presents.

                                              III.

       We believe it appropriate that we remand Thomas’s petition for review to the BIA

for further consideration in light of his approved I-130, the extremely minor delay which

caused no prejudice to any party, and the BIA’s stated willingness to consider the merits

of the claim. For these reasons we will REMAND the petition to the BIA for further

proceedings not inconsistent herewith.




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