                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                 _____________

                                  No. 09-3780
                                 _____________

                             OTHMANE OUADAH,
                                       Petitioner
                                   v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent
                          ______________

                 ON PETITION FOR REVIEW OF AN ORDER
                OF THE BOARD OF IMMIGRATION APPEALS
                          (Agency No. A079 733 409)
               Immigration Judge: Honorable Charles M. Honeyman
                               ______________

                    Submitted Under Third Circuit LAR 34.1(a)
                               December 16, 2010
                                ______________

    Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                        (Opinion Filed: January 12, 2011)

                                ______________

                                   OPINION
                                ______________

GREENAWAY, JR., Circuit Judge

     Othmane Ouadah (“Ouadah” or “Petitioner”) appeals from a decision of the Board


                                        1
of Immigration Appeals (“BIA”) denying his motion to remand.1 Since the BIA did not

abuse its discretion in denying this motion, we will affirm the BIA‟s decision.

                                      I. Background

       We write solely for the benefit of the parties and recount only the essential facts.

       Ouadah, a native and citizen of Algeria, entered the United States on September

16, 1994, as a non-immigrant visitor. He was granted an extension of his visa allowing

him to stay in the United States until September 15, 1995. He overstayed his visa. The

Immigration and Naturalization Service2 issued a Notice to Appear (“NTA”) charging

Ouadah with being removable, pursuant to § 237(a)(1)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(1)(B), on January 9, 2003. The NTA ordered

Ouadah to appear for a hearing on February 18, 2004. (Admin. R. 716-18.)

       After several continuances, the IJ held a hearing on May 5, 2008. (Admin. R. 132-



1
  Ouadah does not appeal the BIA‟s dismissal of his appeal from the Immigration Judge‟s
(“IJ”) decision denying his motion for a continuance and denying his application for
asylum, withholding of removal, and relief pursuant to the Convention Against Torture
(“CAT”). In fact, Ouadah concedes that the request for asylum is presumptively time-
barred and not subject to review before this Court. (Br. of the Pet‟r 1 n.1.)
2
  On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an
independent agency within the Department of Justice and its functions were transferred to
the newly formed Department of Homeland Security and placed under the Bureau of
Immigration and Customs Enforcement. See Homeland Security Act, 116 Stat. 2135,
Pub. L. 107-296 (2002). For the sake of simplicity, because relevant events occurred
both before and after that change, we will refer to the Bureau of Immigrations and
Customs Enforcement as well as the Immigration and Naturalization Service as the
“government.”



                                              2
93.) At that hearing, the government offered to allow Ouadah to voluntarily depart the

country. Ouadah initially accepted this offer, but, prior to the IJ entering an appropriate

order, Ouadah changed his mind, and sought to pursue his application for asylum,

withholding of removal and relief under the CAT. Upon completion of Ouadah‟s

testimony, the IJ continued the proceedings to issue his decision. On May 15, 2008,

before the IJ issued his decision, Ouadah again changed his mind and opted to withdraw

his application for relief and accept the government‟s offer of voluntary departure.

(Admin. R. 194-203.) The hearing was continued to allow the government to consider

reinstating the offer. At a hearing on May 21, 2008, the government confirmed that the

offer was still available. (Admin. R. 204-08.) Ouadah withdrew his application for

relief, and the IJ continued the hearing to November 12, 2008. At that time, the IJ

proposed the entry of an order of voluntary departure. The November 12th hearing was

continued until November 24, 2008.

       On November 24, 2008, Ouadah appeared before the IJ. (Admin. R. 209-18.)

Instead of proceeding with issuance of the order of voluntary departure, Ouadah sought to

substitute counsel, continue the proceedings, and reinstate his application for relief. The

continuance was based upon an alleged change in circumstances; namely, the August 21,

2008 attack on Ouadah‟s brother.3 In support of the motion, Ouadah submitted his




3
  In Ouadah‟s original affidavit, he refers to the attack having occurred in November
2008. (Admin. R. 681.) Subsequently, he, and his family members, state in affidavits

                                              3
affidavit (Admin. R. 680-81), and his counsel proffered that if the continuance was

granted, affidavits from family members and medical records from the brother‟s

treatment would be provided (Admin. R. 213-14). The IJ granted the motion to substitute

counsel but denied the request to continue, noting that Ouadah did not present “any

material change in circumstances that would suggest that the respondent should be able to

reinstate his application.” (Admin. R. 50.) The IJ then ordered Ouadah removed.

       Ouadah appealed to the BIA. Before the BIA, Ouadah conceded that the IJ found

that he failed to establish prima facie eligibility for the relief he sought. (Admin. R. 17.)

Based on that concession, the BIA dismissed Ouadah‟s appeal of the denial of the motion

for a continuance as moot. The BIA also denied Ouadah‟s motion to remand,4 stating

that “there is no indication that the information was previously unavailable.” (Admin. R.

3.) Specifically, the BIA expressed concern that Ouadah offered no reason as to why the

affidavits from his mother and sister, dated November 4, 2008, and the medical records,

dated August 21, 2008, were not available at the time of the hearing before the IJ on

November 24, 2008. (Id.)


that the attack occurred on August 21, 2008. (Admin. R. 31, 33, 37.) The medical
records substantiating the attack are also dated August 21, 2008. (Admin. R. 42.)

4
 The BIA treated Ouadah‟s appeal as (1) an appeal from the decision of the Immigration
Judge finding him removable, denying his request for a continuance, and ordering him
removed and (2) a motion to remand. Although Ouadah did not specifically file a motion
to remand, the BIA treated the appeal as a motion to remand based on the affidavits
attached to Ouadah‟s brief.



                                              4
       Ouadah now seeks review of the BIA‟s denial of his motion to remand.

                                      II. Jurisdiction

       The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We

have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of the BIA. Kucana

v. Holder, 130 S.Ct. 827 (2010).

                                 III. Standard of Review5

       “We review the BIA‟s denial of a motion to reopen for abuse of discretion, and

review its underlying factual findings related to the motion for substantial evidence. The

BIA‟s denial of a motion to reopen may only be reversed if it is „arbitrary, irrational, or

contrary to law.‟” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (citing Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); quoting Sevoian v. Ashcroft, 290 F.3d 166,

170 (3d Cir. 2002)).

                                        IV. Analysis

       “The Supreme Court has identified three principal grounds on which the

Immigration Judge or the Board may deny a motion to reopen immigration proceedings.

First, it may hold that the movant has failed to establish a prima facie case for the relief

sought . . . . Second, it may hold that the movant has failed to introduce previously

unavailable, material evidence that justifies reopening, as required by regulation. Third,



5
  “[F]or purposes of jurisdiction we treat a motion to remand as a motion to reopen. We
consider these devices as equivalent for jurisdictional and standard of review purposes.”
Kortynyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005) (internal citations omitted).

                                              5
in „cases in which the ultimate grant of relief [being sought] is discretionary (asylum,

suspension of deportation, and adjustment of status, but not withholding of deportation),‟

the Board can „leap ahead . . . over the two threshold concerns (prima facie case and new

evidence/reasonable explanation) and simply determine that even if they were met, the

movant would not be entitled to the discretionary grant of relief.‟” Sevoian, 290 F.3d at

169-70 (quoting INS v. Abudu, 485 U.S. 94, 105 (1988), and citing 8 C.F.R. § 3.2(c)

(currently numbered as 8 C.F.R. § 1003.2(c))). These three grounds are independent of

each other. Abudu, 485 U.S. at 104. Further, both this Court and the Supreme Court of

the United States have emphasized that motions to reopen in immigration proceedings are

disfavored. See, e.g., id. at 107; Sevoian v. Ashcroft, 290 F.3d at 171-72.

       Here, the BIA concluded that Ouadah had not provided any explanation as to why

the evidence introduced before the BIA was previously unavailable. Ouadah argues

before this Court that the fact the affidavits from his mother and sister were dated prior to

the date of the hearing before the IJ does not mean that Ouadah received them before the

hearing. There is no evidence in the record to support this proposition. At present, it is

conjecture. Further, Ouadah did not provide any explanation for the failure to present

these affidavits to the BIA. Rather, as the BIA notes, no explanation for why the

evidence was previously unavailable was offered. This conclusion is not “arbitrary,

irrational, or contrary to law.”

       It is the applicant‟s burden to demonstrate that the evidence was previously




                                              6
unavailable, and the burden is a heavy one. Abudu, 485 U.S. at 110. Ouadah failed to

satisfy that burden. Offering conjectural explanations now is insufficient; Ouadah should

have provided an explanation to the BIA. He did not. Therefore, we will affirm the

BIA.6

                                       V. Conclusion

        For the reasons stated above, this Court will affirm the BIA‟s decision denying

Ouadah‟s motion to remand.7




6
  Ouadah argues that he has established a prima facie claim for relief. Since the three
grounds listed above are independent of each other, Abudu, 485 U.S. at 104, the BIA can
base its grant or denial of a motion to reopen on any one of them. In this case, the BIA
based its decision on the second ground — the failure to provide previously unavailable
material evidence. Therefore, this Court need not discuss the first ground, as Ouadah
does. These factors are not conjunctive. The BIA has the option of choosing the basis
for its decision. Id. at 105-6 (“[T]he BIA has discretion to deny a motion to reopen even
if the alien has made out a prima facie case for relief.”).
7
  In passing, Ouadah mentions that the BIA “denied [him] due process by failing to
remand this matter for further proceedings.” (Br. of the Pet‟r 2.) On two other occasions,
Ouadah mentions a potential due process claim in his brief. (Id. at 21, 26.) These three
references, without more, fail to set forth that claim before this Court. See, e.g., U.S. v.
Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (“An appellant‟s brief must contain his or
her argument, which must incorporate „appellant‟s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant relies. . . .‟”
(quoting FED. R. APP. P. 28(a)(9)(A)); Simmons v. City of Philadelphia, 947 F.2d 1042,
1066 (3d Cir. 1991) (plurality opinion) (“Under the specificity requirements of Federal
Rule of Appellate Procedure 28 and Third Circuit Rule 21, a passing reference to an issue
in a brief will not suffice to bring that issue before this court on appeal.”). Lacking any
factual or legal support or explanation for Ouadah‟s contention that the BIA‟s decision
violated his due process rights, we conclude that this argument is waived.

                                               7
