                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4878




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 06-4878
                                     ____________

                              ALLAELDIN ELHATTAB,

                                                   Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                                     ____________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                             (Agency No. A75-872-143)
                   Immigration Judge: Honorable Alberto J. Riefkohl

                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 1, 2008

                 Before: RENDELL and CHAGARES, Circuit Judges,
                           and POLLAK, *District Judge.

                                     ____________

                               (Filed: February 7, 2008)
                                     ____________

                              OPINION OF THE COURT
                                   ____________




       *Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
CHAGARES, Circuit Judge.


       Allaeldin Elhattab petitions for review of a final order of removal issued by the

Board of Immigration Appeals (BIA). Elhattab claims that the BIA abused its discretion,

both in denying his initial motion to reopen and in failing to reopen his claim for

adjustment of status on its own initiative. As Elhattab’s contentions are without merit, we

will deny his petition for review.

                                              I.

       As we write mainly for the parties, we only briefly recite the facts. Allaeldin

Elhattab, a native and citizen of Egypt, entered the country in 1993 as a non-immigrant

visitor and remained after his visa expired. Elhattab attempted to adjust his status, based

on his marriage to his first wife but the district director denied the petition. At subsequent

removal proceedings, Elhattab attempted again to adjust his status, now based on a

potential new marriage to a United States citizen, but the Immigration Judge (IJ) ordered

Elhattab removed on March 2, 2005. The IJ noted that Elhattab intended to divorce his

first wife and marry his fiancé and thus “does not have any viable application for

adjustment of status at the present, since he is still married to his first wife and obviously

cannot marry his second prospective wife or his fiancé at the present time.” Appendix

(App.) 166.

       Elhattab subsequently appealed to the BIA. The BIA affirmed the IJ’s decision on

May 19, 2006, noting that Elhattab failed to submit evidence to prove that the marriage to



                                               2
his second wife was bona fide. On July 10, 2006, Elhattab filed a motion to reopen,

which the BIA ultimately denied, for largely the same reason.1

       Finally, on September 20, 2006, Elhattab filed another motion to

reopen/reconsider, arguing, among other things, that the BIA erred in concluding that he

did not establish the bona fides of his marriage. The BIA held that, to the extent his

motion was a motion to reconsider, Elhattab failed to show error in the BIA’s prior

decision; to the extent Elhattab’s motion requested reopening, the motion was untimely

and numerically barred, since it was filed more than 90 days after the BIA’s May 19,

2006 decision and was Elhattab’s second motion to reopen. Elhattab appeals from this

decision by the BIA.

                                             II.

       Elhattab’s main contention on appeal is that the BIA abused its discretion in failing

to reopen his case. The BIA has the authority, under 8 C.F.R. § 1003.2, to reopen a case

sua sponte, and so, Elhattab argues, the BIA should have done so in light of the

“overwhelming evidentiary proof regarding the bona fides of his marriage.” Appellant

Br. at 10. However, as we made clear in Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d

Cir. 2003), “[b]ecause the BIA retains unfettered discretion to decline to sua sponte

reopen or reconsider a deportation proceeding, this court is without jurisdiction to review

a decision declining to exercise such discretion to reopen or reconsider the case.” See

1
 Indeed, the affidavit Elhattab filed attesting to the validity of his current (second)
marriage seems to have been prepared in support of a previous application for adjustment
of status because it refers to Cecilia, his ex-wife. App. 97-98.

                                             3
also 8 C.F.R. § 1003.2(a). Accordingly, we lack jurisdiction to entertain this part of

Elhattab’s appeal.

                                             III.

       Elhattab’s subsidiary argument is that the BIA abused its discretion in denying his

initial motion to reopen. As we have held, decisions by the BIA to deny a motion to

reopen “will not be disturbed unless they are found to be ‘arbitrary, irrational or contrary

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

       In its order of November 1, 2006, the BIA reaffirmed its denial of Elhattab’s initial

July 16, 2006 motion to reopen. In that prior decision, the BIA found that Elhattab failed

to provide sufficient evidence to establish the bona fides of his marriage. Specifically, the

BIA pointed to Elhattab’s failure to submit documentary evidence to establish the

commingling of financial resources or a common residence, and his failure to submit a

divorce decree from his alleged earlier divorce. Elhattab now argues that because he had

only been married for a short time when he submitted the documentation supporting his

marriage, much of the information the BIA sought to consider was unavailable to him.

       Elhattab’s argument is undercut by the fact that his subsequent motion contained

documents showing joint accounts and a residential lease, both of which predated his

initial motion to reopen. App. 60, 61, 62, 68, 74. As he was in possession of the very

documents he should have submitted to support his initial motion, Elhattab’s argument is

without merit. Accordingly, the BIA did not act arbitrarily, irrationally, or contrary to

law when it denied his initial motion, and we will deny his petition for review.

                                              4
