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


1-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3269




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3269


                              CHARAN DASS NAYYAR,

                                                 Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                 Respondent



                        On Petition for Review of an Order of
                          The Board of Immigration Appeals
                     Immigration Judge: Honorable Henry S. Dogin
                                  (No. A71-484-817)


                               Argued December 11, 2007

                    Before: SLOVITER and AMBRO, Circuit Judges
                               RESTANI,* Chief Judge

                           (Opinion filed January 15, 2008 )

Thomas E. Moseley, Esquire (Argued)
Suite 2600
One Gateway Center
Newark, NJ 07102-0000


   *
      Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
       Counsel for Petitioner

Peter D. Keisler
  Assistant Attorney General, Civil Division
David V. Bernal
  Assistant Director
Richard M. Evans, Esquire
Patricia A. Smith, Esquire
Russell J.E. Verby, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000

Curtis E. Gannon, Equire (Argued)
United States Department of Justice
Appellate Section, Room 5636
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

              Counsel for Respondent




                                          OPINION


AMBRO, Circuit Judge

       Charan Dass Nayyar petitions for review of an order issued by the Board of

Immigration Appeals declining to reopen his removal proceedings sua sponte. We

dismiss the petition for lack of jurisdiction.

       We highlight only those facts that are pertinent to our analysis. Nayyar is a native

of India who entered the United States illegally in 1992. He was put into removal



                                                 2
proceedings in 1994 and applied for political asylum, withholding of deportation (the

word then used, though now called removal1 ), and voluntary departure as an alternative to

deportation. After a hearing on the applications, the Immigration Judge found Nayyar’s

testimony not to be credible, and further found that he had not met his burden for political

asylum or withholding of deportation. As such, the IJ denied the application. He did,

however, grant Nayyar’s application for voluntary departure.

       Nayyar appealed the IJ’s decision to the BIA, which adopted and affirmed the IJ’s

decision.2 In the meantime (October 1997), Nayyar filed a motion to reopen the

proceedings. He stated that he had recently become “the beneficiary of an approved [I-

140 visa] petition” based on an employment-based preference. As a result of the

approved visa petition, Nayyar claimed that he was eligible to file for an adjustment to his

immigration status, and that he had filed the requisite forms with the Immigration and

Naturalization Service 3 in support of adjusting his status. He attached as exhibits to his



   1
     The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) eliminated the previous legal distinction between deportation and removal
proceedings. See Alaka v. Att’y Gen., 456 F.3d 88, 94 n.7 (3d Cir. 2006). We use the
terms interchangeably here.
   2
     Nayyar also filed a petition for review of the BIA’s decision in our Court. We denied
review, in effect affirming that decision in a judgment order. See Nayyar v. INS, Civ. No.
97-3478, 156 F.3d 1225 (Table) (May 12, 1998).
   3
    On March 1, 2003, the functions of the INS were transferred to the United States
Department of Homeland Security (“DHS”). See Knapik v. Ashcroft, 384 F.3d 84, 86 n.2
(3d Cir. 2004) (citing Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451
& 471, 116 Stat. 2135, codified at 6 U.S.C. §§ 251, 271 & 291).

                                              3
motion copies of his I-485 application for adjustment of status form and a fee receipt

reflecting that he had paid the $1,130 filing fee to submit his forms to the INS. It is

unclear whether he also attached proof that his I-140 petition had been approved.4

       In December 1998, the BIA denied Nayyar’s motion to reopen. It held that Nayyar

“has failed to provide evidence that his employment-based[]visa petition has been

approved and that, therefore, a visa is immediately available to him. Accordingly, he has

also failed to establish prima facie eligibility as required for such a motion pursuant to

8 C.F.R. [§ 1003.2].”

       Seven years later (in 2005), Nayyar, represented by new counsel, filed a second

motion to reopen, arguing that the BIA should reopen the deportation proceedings in an

exercise of its sua sponte authority pursuant to 8 C.F.R. § 1003.2 because it had failed to

consider evidence of his approved visa petition in 1998. See Calle-Vujiles v. Ashcroft,

320 F.3d 472, 474 (3d Cir. 2003) (“Generally, the BIA is allowed to reopen or reconsider

a case sua sponte in ‘exceptional situations.’”) (quoting In re J-J-, 21 I. & N. Dec. 976

(BIA 1997)). The BIA denied the motion in 2006, finding no error in the 1998 decision.

Nayyar then filed a motion seeking reconsideration of the 2006 decision or, in the




   4
     At the time Nayyar filed his motion to reopen, an alien could not file his or her I-485
until after the I-140 had been approved. Nayyar argues that he submitted proof that he
had an approved I-140 in his 1997 motion to reopen, but it is not present in the exhibits to
the motion contained in the administrative record. He claims that it must have been lost.
Pet. Br. 11–12. A copy of the approved I-140, provided as an exhibit to a subsequent
motion, is currently available in the administrative record.

                                              4
alternative, sua sponte reopening of the removal proceedings. The BIA denied the

motion for reconsideration because it had been filed out of time. It further found no basis

to reopen the removal proceedings under its sua sponte authority. Nayyar, again

represented by new counsel, then filed this timely petition for review in our Court.

       The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.2. We, however, lack

jurisdiction to review the BIA’s decision not to reopen sua sponte because that decision is

confined to the unfettered discretion of the BIA. As we have previously held, “[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.” Calle-Vujiles, 320 F.3d at 475;

see also Cruz v. Att’y Gen, 452 F.3d 240, 250 (3d Cir. 2006). Nayyar contends that we

have jurisdiction to review the BIA’s decision not to reopen his proceedings sua sponte

because the BIA determined that he was ineligible for discretionary relief, rather than

finding him eligible for relief but nevertheless declining to reopen in an exercise of its

unfettered discretion. Cf. Cruz, 452 F.3d at 250 (noting that where the BIA finds a

petitioner “ineligible [for reopening] because he failed to establish a prima facie case for

sua sponte relief. . . . [,] we . . . have jurisdiction to review the BIA’s decision [regarding

eligibility].”). Here, however, the BIA held in 2006 that there was “no basis to accept the

motion under [its] sua sponte authority.” We read this as a statement that the BIA found




                                               5
no reason to decide for the benefit of Nayyar.5 Accordingly, the petition for review is

dismissed for want of jurisdiction.




   5
    While there might have been an argument in 1998 that we could review the BIA’s
determination that Nayyar was not eligible for reopening sua sponte, that argument was
not made following the BIA’s 1998 decision. Nearly ten years later, it is far too late to
revive that putative contention.

                                             6
