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


2-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5578




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                    No. 05-5578


                             WAQAR ALI BANGASH,
                                            Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES

                                                      Respondent
                               __________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                              (Board No. A79-734-990)


                     Submitted under Third Circuit LAR 34.1(a)
                                December 11 , 2006

                      Before: SMITH and ROTH, Circuit Judges
                               *IRENAS, District Judge

                          (Opinion filed February 27, 2007)



                                     OPINION




       *Honorable Joseph E. Irenas, United States Court Judge for the District of New
Jersey, sitting by designation
ROTH, Circuit Judge:

       Waqar Ali Bangash petitions for review of the decision of the Board of Immigration

Appeals (BIA) denying his motion to reopen and reconsider its prior decision, which

affirmed the Immigration Judge’s (IJ) denial of his motion for a continuance. We will deny

the petition.

       Bangash, a native and citizen of Pakistan, was admitted to the United States on or

about August 16, 1998, as a nonimmigrant student and was authorized to remain in the

country while he attended school. In March 2003, the Immigration and Naturalization

Service instigated removal proceedings against him, finding that he failed to maintain or

comply with the conditions of his nonimmigrant status. Bangash appeared before the IJ on

July 15, 2003, conceding removability and requesting a continuance pending the resolution

of a labor certification application filed on his behalf with the New York Department of

Labor in April 2001. The IJ granted Bangash’s request for a continuance on no less than

three separate occasions while his labor certification application remained pending. On

November 16, 2004, with his application still pending, the IJ refused to grant Bangash an

additional continuance. Instead, she scheduled a hearing for December 21, 2004, for the sole

purpose of determining whether Bangash was eligible for voluntary departure. At the

hearing held on December 21, 2004, Bangash moved for another continuance. The IJ denied

the motion but granted his application for voluntary departure in lieu of removal.



       On January 18, 2005, Bangash appealed the IJ’s denial of his request for a

                                             2
continuance to the BIA and sought an administrative closure of his removal proceedings

pending the resolution of his labor certification application. In support of his appeal,

Bangash argued that by refusing to continue his proceeding, the IJ denied him a fair trial.

On September 23, 2005, the BIA affirmed the IJ’s decision, finding that the IJ did not abuse

her discretion or deny Bangash a fair trial by denying his request for a continuance.

Furthermore, the IJ noted that administrative closure of a proceeding is only granted if both

parties acquiesce and, in this instance, there was no such acquiescence by the government.

       Bangash failed to appeal the BIA’s decision to this Court. Instead, on October 26,

2005, Bangash filed with the BIA a motion to reopen and reconsider its order of September

23, 2005, affirming the IJ’s decision. In support of his motion, Bangash again claimed that

he was denied a fair trial in light of his pending labor certification application. Additionally,

he argued that his removal would cause him extreme hardship as a result of the earthquake

that occurred on October 8, 2005, which he claimed affected his community in Pakistan. The

BIA denied the motion, refusing both to reopen the proceedings and to reconsider its prior

decision of September 23, 2005. Specifically, the BIA found no factual or legal error in its

previous decision that would require reconsideration. See 8 C.F.R. § 1003.2(b)(1). With

respect to reopening the proceedings, the BIA noted that Bangash’s motion failed to set forth

any new or previously unavailable material evidence as required under 8 C.F.R. §

1003.2(c)(1). Failing to meet the requirements of a proper motion to reopen or reconsider,

Bangash’s motion was denied.

       A timely petition for review followed, in which Bangash seeks relief from the BIA’s

                                               3
affirmance of the IJ’s denial of his motion for a continuance as well as the BIA’s denial of

his motion to reopen and reconsider its decision of September 23, 2005.

       We have jurisdiction to review final orders of the BIA under § 242(a) of the

Immigration and Nationality Act, 8 U.S.C. § 1252. We do not, however, have jurisdiction

to consider claims that were not properly brought before this Court. As noted above,

Bangash never filed a petition for review of the BIA’s September 23, 2005 order affirming

the IJ’s denial of his motion for a continuance. Accordingly, we do not have jurisdiction to

consider this claim in the instant petition. See Stone v. INS, 514 U.S. 386, 395 (1995) (“The

filing of the reconsideration motion does not toll the time to petition for review.”).

       We may, however, review the BIA’s denial of Bangash’s motion to reopen and

reconsider. In that regard, denials of motions to reopen or reconsider are within the

discretion of the BIA. See 8 C.F.R. § 1003.2(a). Pursuant to section 1003.2(a), the BIA has

discretion to deny such motions even if the movant has established a prima facie case for

relief. Thus, we review the BIA’s denial of Bangash’s motion to reopen and reconsider for

abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this

standard, the BIA’s decision will be upheld unless it was “arbitrary, irrational, or contrary

to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

       Pursuant to 8 C.F.R. § 1003.2(c)(1), a motion to reopen must present “new facts that

will be proven at a hearing to be held if the motion is granted.” On appeal, Bangash argues

that the BIA abused its discretion by failing to qualify the October 2005 earthquake as

production of new evidence from which to reopen his proceedings. Bangash maintains that

                                              4
the BIA should have taken administrative notice of the earthquake in its determination of

whether he should receive a continuance in light of his pending labor certification

application. Indeed, the BIA has authority to take administrative notice of commonly known

facts, such as current events. See 8 C.F.R. 1003.1(d)(3)(iv). In this instance, however,

taking administrative notice of the October 2005 earthquake would nevertheless provide no

basis for reopening his proceedings. Bangash’s motion, while stating that the earthquake

affected his community in Pakistan, contains no other evidence to support this contention.

Thus, his motion fails to establish proper grounds for reopening his proceedings.

       Because Bangash failed to set forth new facts that would warrant reopening his

proceedings, the BIA did not abuse its discretion in denying his motion. Therefore, we will

deny the petition for review.




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