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


6-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5410




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                                             NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                Nos. 05-5410 and 06-2921


                 RIADH BADREDDINE,

                                             Petitioner in No. 05-5410

                            v.

   ATTORNEY GENERAL OF THE UNITED STATES;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES;
BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT


                 RIADH BADREDDINE,

                                             Petitioner in No. 06-2921

                            v.

         ATTORNEY GENERAL OF THE USA


           On Petition for Review of Decisions
      and Orders of the Board of Immigration Appeals
                  BIA No. A78-499-121
      Immigration Judge: Hon. Charles M. Honeyman


        Submitted under Third Circuit LAR 34.1(a)
                      June 8, 2007

  BEFORE: SMITH and GREENBERG, Circuit Judges, and
                                POLLAK,* District Judge

                                  (Filed: June 11, 2007)


                                OPINION OF THE COURT


GREENBERG, Circuit Judge.

      These matters come on before the court on consolidated petitions for review of

decisions and orders of the Board of Immigration Appeals (“BIA”) entered November 15,

2005, and May 4, 2006, brought by Riadh Badreddine, a Tunisian. The decision and

order of May 4, 2006, denied a motion to reopen the decision and order of November 15,

2005, which had affirmed a decision and order of an immigration judge (“IJ”) of August

20, 2004, denying Badreddine’s request for a continuance of adjustment of status

proceedings before him. The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and we

have jurisdiction under 8 U.S.C. §§ 1252(a) and (b). See Khan v. Attorney General, 448

F.3d 226, 229 (3d Cir. 2006).

      The background of these proceedings insofar as it involves a paper trail is quite

complex, largely because Amber Leigh Smith, Badreddine’s wife at least to the extent

that she entered into a ceremonial marriage with him, has prosecuted parallel proceedings

arising from the same circumstances involved in these proceedings. But, notwithstanding




*Honorable Louis H. Pollak, Senior Judge of the United States District Court for the

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Eastern District of Pennsylvania, sitting by designation.

the seeming complexity of this case, in reality the underlying circumstances triggering it

are quite straight forward. After Badreddine lawfully entered the country as a seaman, he

overstayed the period authorized for him to remain here and then married Amber Smith.

Thereafter, she filed applications seeking a decision permitting him to stay in the country,

and Badreddine himself on April 3, 2001, filed an application seeking an adjustment of

his status by reason of his marriage. The actual dispute centers on the substantive issue of

whether his marriage is bona fide.

       The IJ on August 20, 2004, in the adjustment of status proceedings, though not

addressing the bona fides of the marriage, pointed out that Badreddine did not have a

current, approved visa and that his previous visa had been revoked. Moreover, the IJ

indicated that there was no reasonable likelihood that Badreddine’s visa application

would be approved. Thus, he denied the application for a continuance and ordered

Badreddine’s removal to Tunisia. On appeal, in its November 15, 2005 decision and

order, the BIA held that the IJ did not abuse his “discretion in denying [Badreddine’s]

motion to continue [the] proceedings as there was no relief available to [Badreddine] at

the time, and any future approval of a visa petition was speculative at best.”

       Badreddine also filed a motion to remand with the BIA because he had an

unapproved visa petition pending. The BIA denied that motion in its November 15, 2005

decision and order explaining:


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                The respondent also filed a motion to remand based upon a filed but
         not approved visa petition, citing to Matter of Velarde, 23 I&N Dec. 253
         (BIA 2002). DHS has opposed, stating that the second visa petition filed on
         behalf of the respondent was revoked, and a third visa petition was denied.
         DHS further points out that the Board affirmed the revocation and denial of
         the visa petition, and affirmed the District Director’s finding that the
         marriage was entered into for the purpose of evading the immigration laws.
         Pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C.
         § 1154(c), no petition may be approved if the respondent has been found to
         have entered into a sham marriage. As the visa petition is unlikely to be
         approved, and DHS has opposed the motion in any event, the motion is
         denied.

Badreddine filed a timely petition for review of the November 15, 2005 decision and

order.

         Subsequently, Badreddine filed a motion to reopen the November 15, 2005

decision and order. The BIA denied the motion on May 4, 2006, explaining as follows:

                 The respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to
         reopen our decision dated November 15, 2005. The respondent seeks
         reopening to apply for adjustment of status under section 245 of the
         Immigration and Nationality Act. As an initial matter, we note that the
         respondent’s March 8, 2006, motion to reopen is untimely, inasmuch as it
         was not filed within 90 day[s] of our November 15, 2005, final
         administrative order. See 8 C.F.R. § 1003.2(c). Furthermore, we find that
         the respondent has failed to establish that reopening is warranted pursuant
         to our sua sponte authority. See 8 C.F.R. § 1003.2(a). We find that the
         respondent’s subsequent eligibility for discretionary relief does not establish
         exceptional circumstances. See Matter of J-J-, 21 I&N Dec. 976 (BIA
         1997) (holding that the Board’s power to reopen or reconsider cases sua
         sponte is limited to exceptional circumstances and is not meant to cure
         filing defects or circumvent the regulations, where enforcing them might
         result in hardship). Accordingly, the motion is denied.

Badreddine filed a timely petition for review of the May 4, 2006 decision and order. We

have consolidated the petitions for review.

                                               4
       In reviewing the IJ’s denial of the motion for a continuance and the BIA’s decision

and order affirming the denial we review the decision and order of the IJ to the extent that

the BIA adopted the IJ’s decision. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en

banc). Of course, overall we are exercising abuse of discretion review. Khan, 448 F.3d

at 233. In this regard we point out that Badreddine largely challenges the August 20,

2004 decision and order based on events which occurred before that day. Thus, he

contends that the IJ erred in continuing an adjustment of status merits hearing at the

government’s request over his objection on January 29, 2004, when the government

served a Notice of Intent to Revoke his visa. The IJ, however, was evenhanded as on July

15, 2004, over the government’s objection, he again continued the matter but did so at

Badreddine’s request. Regardless, however, it is important to remember that we do not

review these earlier continuances as they are not directly before us and are significant

only insofar as they help put the proceedings that are before us in context.

       What is first before us is the IJ’s decision and order of August 20, 2004. At that

time, the matter long had been pending and there seemed to be little likelihood that

Badreddine would obtain visa relief. Thus, he simply was not lawfully in the country and,

on the basis of his status, he should have been removed. Plainly, we cannot say that the IJ

abused his discretion when he refused to grant a continuance as we can see no reason to

believe that Badreddine could obtain visa relief. In the circumstances, we cannot disturb

the November 15, 2005 decision and order which affirmed the August 20, 2004 decision


                                             5
and order.

       Badreddine’s petition for review of the May 4, 2006 decision and order plainly is

without merit. As the BIA pointed out, he filed the motion to reopen the November 15,

2005 decision and order on March 8, 2006. Consequently, it was untimely as he filed it

more than 90 days after November 15, 2005. See 8 C.F.R. § 1003.2(c). While it is true

that the BIA sua sponte could have reopened the November 15, 2005 decision and order,

see 8 C.F.R. § 1003.2(a), it decided not to do so as it held that Badreddine did not

establish exceptional circumstances to support such action. Our jurisdiction does not

extend to a review of that decision. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d

Cir. 2003). Finally we reject Badreddine’s reliance on the Administrative Procedure Act,

on which basis he attempts to inflate his claims to constitutional status, as it is not

applicable in these proceedings. See Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d

Cir. 1976); see also Kowalczyk v. INS, 245 F.3d 1143, 1150 n.5 (10th Cir. 2001).

       The petitions for review of the decisions and orders of the BIA entered November

15, 2005, and May 4, 2006, will be denied.




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