     07-0556-ag
     Jabar v. Holder



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMM ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS CO URT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED W ITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .



            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
     Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 21st day
     of April, two thousand and ten.

 1   PRESENT:
 2               JOHN M. WALKER, JR.,
 3               CHESTER J. STRAUB,
 4               DEBRA ANN LIVINGSTON,
 5                                 Circuit Judges.
 6   _______________________________________________
 7
 8   FAZAL JABAR, also known as ABDOOL FAZAL JABAR,
 9
10                                 Petitioner,
11                     v.                                                No. 07-0556-ag
12
13   UNITED STATES DEPARTMENT OF JUSTICE,
14   ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
15   GENERAL,
16
17                           Respondents.*
18   ______________________________________________
19
20                                        Khagendra Gharti-Chhetry, Chhetry & Associates, New


             *
              Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
     Holder, Jr., is automatically substituted for former Attorney General Alberto R. Gonzales as
     respondent for this case. The Clerk is respectfully directed to amend the official caption to
     conform to that listed above.
 1                                          York, NY, for Petitioner.
 2
 3                                          Tony West, Assistant Attorney General; Janice K. Redfern,
 4                                          Sr. Litigation Counsel; Thankful T. Vanderstar, Attorney;
 5                                          Office of Immigration Litigation, United States Department
 6                                          of Justice, Washington D.C., for Respondents.
 7

 8          Upon due consideration of this petition for review of a Board of Immigration Appeals

 9   (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the petition for review

10   is DENIED.

11          Petitioner Fazal Jabar, a native and citizen of Guyana, seeks review of a January 19, 2007

12   order of the BIA dismissing his appeal of the July 21, 2005 order of Immigration Judge (“IJ”) Philip

13   J. Montante, Jr., which denied Petitioner’s applications for waiver of inadmissibility and adjustment

14   of status and ordered Petitioner excluded from the United States. In re Fazal Jabar, No. A71 970

15   901 (B.I.A. Jan. 19, 2007), dismissing No. A071 971 901 (Immig. Ct. Buffalo Jul. 21, 2005). We

16   assume the parties’ familiarity with the underlying facts and procedural history of the case and with

17   the issues presented for review.

18          Under the circumstances presented in this case, we review the decision of the IJ as

19   supplemented by the BIA. See Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir. 2007). The applicable

20   standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

21   F.3d 510, 513 (2d Cir. 2009). Specifically, we review questions of law and the application of law

22   to undisputed fact de novo. Yanqin Weng, 562 F.3d at 513. Here, we review de novo the BIA’s

23   conclusion that it and the IJ lacked jurisdiction over Petitioner’s applications.

24          Citing the BIA’s decision in In re Castro-Padron, 21 I. & N. Dec. 379 (B.I.A. 1996) (en

25   banc) and 8 C.F.R. § 245.2(a)(1) (2005), the IJ noted that he lacked jurisdiction over applications


                                                       2
 1   for adjustment of status by an alien in exclusion proceedings, except in limited circumstances not

 2   present in the case.1 The IJ further concluded that Petitioner was an “arriving alien” under §

 3   245.1(c)(8), because had not carried his burden under 8 C.F.R. § 245.22 (2005) to demonstrate that

 4   he had reentered the United States on any particular date after his initial arrest in February 1992. The

 5   IJ indicated that Petitioner could file his adjustment application with the district director.

 6           The BIA dismissed the appeal on the ground that it lacked jurisdiction over Petitioner’s

 7   adjustment application pursuant to Castro-Padron because Petitioner remained subject to exclusion

 8   proceedings. It rejected Petitioner’s argument that his departure from the United States in 1992 and

 9   alleged subsequent return meant that his original 1992 exclusion proceeding had terminated, noting

10   that “the mere allegation of a subsequent reentry into this country is not sufficient to defeat exclusion

11   proceedings that have already commenced,” and that Petitioner had conceded the grounds of

12   excludability. In re Fazal Jabar, A71 970 901 (B.I.A. 2007).

13           In Castro-Padron, the BIA held that “[i]n exclusion proceedings, the Immigration Judges and

14   the Board generally lack jurisdiction to entertain an application for adjustment of status under section

15   245 of the [INA].” Castro-Padron, 21 I. & N. Dec. at 379. In line with Castro-Padron, the relevant

16   regulations at the time the IJ considered Petitioner’s application directed a person in Petitioner’s

17   situation to file his application for adjustment of status with the district director, and did not provide

18   for such an application to be made in exclusion proceedings. 8 C.F.R. § 245.2(a)(1) (2005).



             1
              The IJ cited 8 C.F.R. § 245.1 (2005). This provision applied to cases before the former
     INS (now USCIS). The provision was in substance identical with 8 C.F.R. § 1245.1(c)(8)
     (2005), which applied to the Executive Office for Immigration Review, including the
     immigration courts. See Ceta v. Mukasey, 535 F.3d 639, 642 n.5 (7th Cir. 2008); see also Sheng
     Gao Ni v. BIA, 520 F.3d 125, 129 (2d Cir. 2008). The parties use these provisions
     interchangeably.

                                                         3
 1   Petitioner does not contest that the IJ generally lacks jurisdiction to consider an application for

 2   adjustment of status made by an alien in exclusion proceedings, but argues that this principle is

 3   inapplicable to him because A) the immigration judge erred in concluding that Petitioner is an

 4   “arriving alien” and B) Petitioner was not in “exclusion proceedings” because that proceeding

 5   terminated when he left the country in February 1992. These two arguments are in effect the same:

 6   Petitioner argues that the exclusion proceeding commenced against him on February 5, 1992

 7   terminated when Petitioner was taken back to Canada by the New York State police on that same

 8   date, and therefore when Petitioner allegedly re-entered the country in February 1993 he was no

 9   longer an “arriving alien” as that term is defined in 8 C.F.R. § 1.1(q).

10          We conclude that Petitioner’s return to Canada on February 5, 1992 did not “terminate” his

11   pending exclusion proceeding, nor did anything else that happened prior to the time the IJ considered

12   Petitioner’s application for adjustment of status, and therefore that the BIA and IJ properly concluded

13   that they lacked jurisdiction over his applications. 8 C.F.R. § 245.2(a)(1) (2005). A hearing was

14   scheduled in Petitioner’s exclusion proceedings for July 29, 1992, after Petitioner had been

15   transported back to Canada, but Petitioner did not appear. The IJ’s order, issued July 30, 1992,

16   indicated that Petitioner’s case would be “administratively closed” and that no further action would

17   be taken on it by the court “until [Petitioner] is located and a motion to recalendar is filed.” App.

18   340. It was Petitioner who made the motion to recalendar on December 8, 2003, and who then on

19   May 27, 2004, moved for “Termination of the ongoing proceedings.” App. 313. This sequence of

20   events is clearly inconsistent with the Petitioner’s current argument that the proceeding terminated

21   on its own when he departed the country in February 1992. Petitioner points to no event taking place

22   between the initiation of exclusion proceedings on February 5, 1992, and his motion to terminate in


                                                       4
 1   May 2004 at which the IJ or BIA took any action to “terminate” the exclusion proceeding, nor does

 2   he cite any authority for the view that exclusion proceedings may terminate simply due to the

 3   Petitioner’s departure from the country.2 We therefore conclude that the IJ and BIA lacked

 4   jurisdiction over Petitioner’s applications.

 5          We have considered Petitioner’s remaining arguments and conclude that they are without

 6   merit. The Petition for review is therefore DENIED.

 7
 8                                                        FOR THE COURT:
 9                                                        Catherine O’Hagan Wolfe, Clerk
10
11
12




            2
              Although the applicable regulations do not provide a general definition of when
     exclusion proceedings terminate for purposes of determining whether an alien is in such
     proceedings, our conclusion finds further support in 8 C.F.R. § 1245.1(c)(8)(ii) (8 C.F.R. §
     1245.1(c)(9)(ii) at the time of Petitioner’s hearing before the IJ). Section 1245.1(c)(8) makes
     ineligible for adjustment of status any alien “who seeks to adjust status based upon a marriage
     which occurred on or after November 10, 1986, and while the alien was in exclusion,
     deportation, or removal proceedings, or judicial proceedings relating thereto.” Id. § 1245.1(c)(8).
     Section 1245.1(c)(8)(ii) defines when “[t]he period during which the alien is in exclusion,
     deportation, or removal proceedings, or judicial proceedings relating thereto, terminates”:

            (A) When the alien departs from the United States while an order of exclusion,
            deportation, or removal is outstanding or before the expiration of the voluntary departure
            time granted in connection with an alternate order of deportation or removal;
            (B) When the alien is found not to be inadmissible or deportable from the United States;
            (C) When the Form I-122, I-221, I-860, or I-862 is canceled;
            (D) When proceedings are terminated by the immigration judge or the Board of
            Immigration Appeals; or
            (E) When a petition for review or an action for habeas corpus is granted by a Federal
            court on judicial review.

     Id. § 1245.1(c)(8)(ii). None of these events appears to have taken place in this case.


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