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


1-27-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2452




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                                                   NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ___________

                      Nos. 07-2452 & 07-2877
                           ___________

                          MIHIR PATEL,
                              Petitioner

                                 v.

         ATTORNEY GENERAL OF THE UNITED STATES
                __________________________

             JAYANTKUMAR BHAKTIBHAI PATEL,
                        Petitioner

                                 v.

         ATTORNEY GENERAL OF THE UNITED STATES
                __________________________

               Petitions for Review of Orders of the
               United States Department of Justice
                  Board of Immigration Appeals
            (Agency Nos. 73-669-725 & A72-436-644)
           Immigration Judge: Honorable Annie S. Garcy
                 __________________________

           Submitted Pursuant to Third Circuit LAR 34.1(a)
                          January 21, 2009

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                      (Filed: January 27, 2009)
                            ___________

                    OPINION OF THE COURT
                         ___________
PER CURIAM

       Jayantkumar Patel and his son, Mihir Patel, seek review of an order of the Board

of Immigration Appeals (“BIA”) denying reopening of their agency case.1 In 1999, an

Immigration Judge (“IJ”) sustained charges of removability against the Patels and denied

Jayantkumar Patel’s application for asylum and withholding. The IJ permitted the Patels

to depart voluntarily. In 2002, the BIA affirmed the IJ’s decision without opinion and

also allowed voluntary departure. The Patels did not petition for review of the BIA’s

decision.

       On February 16, 2006, Jayantkumar Patel (“Patel”) filed a “motion to reopen

and/or reconsider.” He explained that Vishnu Patel, his brother and a United States

citizen, filed an I-130 Petition in 1994 that was approved in 1995. He stated that neither

he nor the Government told the IJ about the approved I-130 Petition. Patel also submitted



  1
   Although the Patels and the Government proceed as if the petition for review of
Manguben Patel (Jayantkumar’s wife and Mihir’s mother) is before us in this
consolidated matter, we dismissed her petition for failure to prosecute in January 2007.
Patel v. Attorney Gen. of the United States, C.A. No. 06-4444 (order entered on Jan. 16,
2007). Counsel for the Patels sought consolidation of Jayantkumar and Mihir Patel’s
petitions before we dismissed Manguben Patel’s case, but counsel did not mention
Manguben Patel’s petition when she asked us to consolidate C.A. Nos. 07-2452 & 07-
2877 because “these two cases involve a brother and sister in the same family and their
claims are based upon the exact same facts and record.” We note, however, that
Manguben Patel was denied relief for the same reasons as her husband and her son (the
reasons we consider in this opinion). It seems that the BIA mailed separately captioned
but otherwise identical orders to the three family members, App. A1, A3, A5, although
the order naming Jayantkumar Patel is the only one of the three orders in the
administrative record, R. 2.

                                             2
that Bhaktibhai Patel, his father and a United States citizen, also filed an I-130 Petition in

2001, which was approved in July 2005. In September 2005, the State Department

notified him that it had received the visa petition filed on his behalf and asked him to file

a choice of agent and address form. He returned the form and subsequently paid the visa

fees for himself, his wife, and his son. Patel states that the availability of a visa is a

material fact that was unavailable at his hearing. He asked the BIA to consider his “new

evidence” and added a sentence to contend that he was entitled to a grant of withholding

and cancellation of removal. Additionally, Patel stated that his removal would cause

extreme and undue hardship for his aged parents, who depend on him for support, and

would separate him from all his family members, who are living as citizens or permanent

residents of the United States. The BIA denied the motion to reopen as untimely.

       We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a

motion to reopen or a motion for reconsideration under a highly deferential abuse of

discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); Nocon v.

INS, 789 F.2d 1028, 1033 (3d Cir. 1986). The BIA’s discretionary decision will not be

disturbed unless it is found to be arbitrary, irrational or contrary to law. See Guo, 386

F.3d at 562.

       The BIA did not abuse its discretion in denying the motion to reopen as untimely.2



  2
   We conclude, as the BIA apparently did by its description of the motion filed in this
case, that the motion was a motion to reopen, not a motion for reconsideration, because
Patel did not specify errors of fact or law. See 8 C.F.R. § 1003.2(b)(1). We note that

                                                3
Most motions to reopen must be filed no later than 90 days after the date of the final

administrative decision. See 8 C.F.R. § 1003.2(c)(2). The general rule is subject to some

exceptions, see 8 C.F.R. § 1003.2(c)(3), but no exception applies in this case. Patel

seemingly tried to invoke the exception of 8 C.F.R. § 1003.2(c)(3)(ii) in the agency

proceedings, because he described the evidence relating to the visa petitions as material

and unavailable. However, the exception that considers new material evidence that was

previously unavailable is limited to claims of changed conditions in the country of

nationality or the country to which removal has been ordered. See 8 C.F.R.

§ 1003.2(c)(3)(ii).

       The petitioners also contend that the time period for reopening should have been

equitably tolled. Under some circumstances, the time limit is subject to equitable

tolling. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005). However, we cannot

consider the issue of equitable tolling because it was not raised in the motion to reopen

before the agency. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).

Furthermore, we never have held that equitable tolling is warranted for the time during

which an I-130 petition is pending after the time limit for reopening has passed.3


Patel did not meet the deadline for filing a motion to reconsider, either, as that deadline is
only 30 days from the mailing of the BIA’s order. See id. at § 1003.2(b)(2).
  3
   We note that the petitioners heavily rely on Thomas v. Attorney Gen. of the United
States, 201 F. App’x 131 (3d Cir. 2006). First, Thomas is an unpublished decision.
Second, its unusual facts are distinguishable from this case. Third, in that case, we noted:

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

                                              4
       In short, the BIA entered a final order of removal in the Patels’ agency

proceedings in November 2002. The Patels had 90 days to move to reopen the

proceedings. No motion to reopen was filed until February 2006, at the earliest (at first

rejected by the BIA, it had to be refiled in March 2006). The BIA did not abuse its

discretion in denying the late-filed motion as untimely. Accordingly, we will deny the

petitions for review.




       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.

Thomas, 201 F. App’x at 132.

                                             5
