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


1-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3250




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"Calixte v. Atty Gen USA" (2007). 2007 Decisions. Paper 1781.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3250


                                  MARIO CALIXTE,

                                                 Petitioner

                                            v.

                  ATTORNEY GENERAL of the UNITED STATES,

                                                 Respondent



                            On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A75 969 643)
                        Immigration Judge: Donald V. Ferlise
                  Transferred pursuant to the REAL ID Act from the
                           Middle District of Pennsylvania

                              (Docket No. 03-cv-01685)
                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  December 12, 2006


                  Before: FISHER and CHAGARES, Circuit Judges,
                        and BUCKWALTER, District Judge.*

                               (Filed: January 11, 2007)




      *
        The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT


CHAGARES, Circuit Judge:

       Mario Calixte is subject to a final order of removal, and we have previously denied

his petition for review. See Calixte v. Ashcroft, 93 Fed.Appx. 442 (3d Cir. 2004). While

that petition was pending, however, Calixte petitioned for a writ of habeas corpus in the

Middle District of Pennsylvania. After Congress enacted the REAL ID Act, the District

Court converted the case to a petition for review and transferred it to us. See Bonhometre

v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005). Calixte argues that he is now eligible for

permanent residency, and he asks us to grant the petition so that an Immigration Judge

can consider his application for an adjustment of status. See 8 U.S.C. § 1255(a). We

write only for the parties and do not state the facts separately. We read the petition to

challenge the denial of Calixte’s motion to reopen, and deny it because the Board of

Immigration Appeals (“BIA”) did not abuse its discretion.

                                             I.

       At the outset, we must address our jurisdiction. The Attorney General argues that

Calixte failed to exhaust his remedies, 8 U.S.C. § 1252(d)(1), and that the petition

impermissibly challenges the decision to execute a final order of removal, 8 U.S.C. §

1252(g). Both of these arguments presuppose that Calixte “has not challenged the

[BIA’s] denial of his motion to reopen.” See Atty. Gen. Br. at 12.

       We agree with the Attorney General that Calixte’s brief is not a model of clarity.


                                              2
It contains one paragraph of argument, and it never explicitly mentions the BIA’s denial

of the motion to reopen. Nonetheless, the brief does contain a veiled reference to the

BIA’s “refusal to adjudicate” Calixte’s application, and the motion to reopen is the only

basis in law for this petition. We will therefore construe this second petition as a

challenge to the BIA’s denial of the motion to reopen. We have jurisdiction to review

that determination. See Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir. 2002).

                                             II.

       We review the BIA’s denial of a motion to reopen for abuse of discretion. Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir.2001). We may grant the petition only if the denial

was “arbitrary, irrational, or contrary to law.” Caushi v. Attorney General, 436 F.3d 220,

226 (3d Cir. 2006) (internal quotation omitted). The BIA determined that Calixte had

failed to demonstrate prima facie eligibility for an adjustment of status. Because Calixte

did not have an immigrant visa available to him at the time of the BIA’s decision, that

determination was not an abuse of discretion. See 8 U.S.C. § 1255(a). Accordingly, we

must deny the petition for review.




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