                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3277




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APS-320
                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 05-3277
                                 ________________

                                HACI DAGTEKIN,
                                                            Petitioner,

                                          v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent
                  ____________________________________

                    On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                            (Agency No. A78 573 466)
                  _______________________________________


                     Submitted For Possible Summary Action
                   Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   July 28, 2005

      Before: SLOVITER, FUENTES AND NYGAARD, CIRCUIT JUDGES

                               (Filed: August 9, 2005)

                            _______________________

                                   OPINION
                            _______________________


PER CURIAM

     Haci Dagtekin, a citizen of Turkey, seeks review of an order of the Board of
Immigration Appeals (BIA), affirming an Immigration Judge’s decision to deny his

motion to reopen proceedings. Dagtekin also moves for a stay of removal pending his

petition for review. In response, the Government moves for summary denial of the

petition for review. For the following reasons, we will grant the Government’s motion,

summarily deny the petition for review, and deny as moot Dagtekin’s motion for a stay of

removal.

       Dagtekin entered the United States in February 1999 on a business visa. He

overstayed his visa, was placed in removal proceedings, and conceded removability. On

February 19, 2004, an Immigration Judge (IJ) granted Dagtekin the privilege of voluntary

departure until June 18, 2004, with an alternate order of removal to Turkey. At that time,

Dagtekin expressly waived his right to appeal.

       On March 31, 2004, prior to the expiration of his voluntary departure period,

Dagtekin married a United States citizen. On June 10, 2004, he filed a motion to reopen

proceedings before the IJ to adjust his status. The IJ denied the motion to reopen as

untimely and as lacking clear and convincing evidence of a bona fide marriage. The BIA

agreed that Dagtekin’s motion to reopen was untimely and affirmed the IJ’s decision.

       Through counsel, Dagtekin filed a timely petition for review and a motion for a

stay of removal. The Government moves for summary denial of Dagtekin’s petition.1

   1
       We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252. We review
the denial of a motion to reopen for abuse of discretion with “broad deference” to its
decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003). Under this standard,
we will reverse the decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian

                                              2
       Under BIA precedent:

       [A] properly filed motion to reopen may be granted, in the exercise of
       discretion, to provide an alien an opportunity to pursue an application for
       adjustment where the following factors are present: (1) the motion is timely
       filed; (2) the motion is not numerically barred by the regulations; (3) the
       motion is not barred by Matter of Shaar . . . or on any other procedural
       grounds; (4) the motion presents clear and convincing evidence indicating a
       strong likelihood that the respondent’s marriage is bona fide; and (5) the
       Service either does not oppose the motion or bases its opposition solely on
       Matter of Arthur.

In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (B.I.A. 2002); see Bhiski v. Ashcroft,

373 F.3d 363, 371 (3d Cir. 2004) (applying Velarde-Pacheco factors).

       Here, the BIA agreed with the IJ that Dagtekin’s motion to reopen was untimely.

The IJ correctly quoted the regulation providing that a motion to reopen proceedings must

be filed “within 90 days of the date of entry of a final administrative order of removal.” 8

C.F.R. § 1003.23(b)(1). She also properly cited the regulation under which her decision

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

is taken whichever occurs first.” 8 C.F.R. § 1003.39. Dagtekin waived his right to appeal

on February 19, 2004, the same day the IJ granted voluntary departure. The ninety-day

period for filing a motion to reopen expired on May 19, 2004. Dagtekin’s motion to

reopen, filed on June 10, 2004, was untimely by three weeks. Neither his motion nor his

petition offers any argument to the contrary.



v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). We take summary action only where “no
substantial question is presented” or where “subsequent precedent or a change in
circumstances warrants such action.” 3rd Cir. LAR 27.4.

                                                3
      In sum, we find no basis to conclude that the BIA abused its discretion in denying

Dagtekin’s motion to reopen as untimely. Accordingly, we will deny the petition for

review. In light of our disposition, we deny as moot Dagtekin’s motion for a stay of

removal pending resolution of his petition for review. See Catney v. INS, 178 F.3d 190,

196 n.9 (3d Cir. 1999).




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