                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3227




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Nos. 05-3227/3525

                               FELICIA LINDAASTUTY,
                                 Petitioner No. 05-3227
                                            v.

                              ATTORNEY GENERAL OF
                            THE UNITED STATES; USCIS,
                              District Director, DHS Local
                            Removal Officers, and all Officers
                             and Employees having physical
                                  custody of Petitioner,
                                       Respondents


                               FELICIA LINDAASTUTY,
                                 Petitioner No. 05-3525
                                            v.
                                ATTORNEY GENERAL
                               OF THE UNITED STATES,
                                       Respondent

                       Petition for Review from a Decision of the
                              Board of Immigration Appeals
                      Immigration Judge: Donald Vincent Ferlise
                                Agency No. A95-146-362

                     Before: McKEE and GARTH, Circuit Judges,
                        and LIFLAND, Senior District Judge*

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                    May 16, 2006

                             (Opinion filed:June 28, 2006)



      *
       The Hon. John C. Lifland, Senior District Judge of the United States District
Court for the District of New Jersey, sitting by designation.
                                         OPINION

McKEE, Circuit Judge.

       Felicia Lindaastuty asks us to review an order of the Board of Immigration

Appeals denying her motion to reopen her removal proceedings (No. 05-3227). We also

have a petition for a writ of habeas corpus Lindaastuty filed in the district court pursuant

to 28 U.S.C. § 2241, in which she challenged the legality of her detention after the

removal order became final. Pursuant to the Real ID Act, the district court transferred

the habeas petition to us (No. 05-3525).

       For the reasons that follow, we will deny her petition for review and dismiss her

habeas petition as moot.

                      I. FACTS AND PROCEDURAL HISTORY

       Felicia Lindaastuty is a native and citizen of Indonesia. She was admitted into the

United States on or about December 5, 2000, as a visitor for pleasure with authorization

to remain until June 4, 2001. On November 13, 2001, the former INS issued

Lindaastuty a Notice to Appear charging her with removability pursuant to INA §

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States

for a time longer than permitted. At a hearing on January 10, 2002, Lindaastuty,

represented by counsel, conceded her removability and stated that she intended to apply

for asylum, withholding of removal and CAT relief. That relief was denied by the

Immigration Judge, and she appealed to the BIA. The BIA affirmed and dismissed her


                                             2
appeal on February 14, 2005. Lindaastuty did not file a petition for review of the BIA’s

decision affirming the IJ’s denial of her claims for relief.

       On March 2, 2005, Lindaastuty filed a timely petition to reopen her removal

proceedings in order to apply for adjustment of status. She claimed that she had married

a United States citizen during her proceedings and he had filed a visa petition on her

behalf. On March 31, 2005, the BIA denied her motion to reopen, finding that she had

not provided clear and convincing evidence of the bona fides of her marriage as required

by Matter of Velarde-Pacheco, 23 I. & N. Dec. 235 (BIA 2002).1 Lindaastuty did not

file a petition for review of the BIA’s denial of her motion to reopen.

       On February 24, 2005, prior to the BIA’s denial of her motion to reopen,

Lindaastuty received a Notice from Customs and Immigration Services requiring her to

appear for an interview on June 24, 2005, in regard to her application for adjustment of

status based on her marriage to a U.S. citizen.

       On April 25, 2005, Lindaastuty filed a motion to reconsider with the BIA, seeking

to present new evidence of the bona fides of her marriage. On June 23, 2005, the BIA




       1
        In Velarde-Pacheco, the BIA held that an alien who entered into a marriage after
commencement of removal proceedings can have a motion to reopen for adjustment of
status granted, notwithstanding the pendency of a visa petition filed on behalf of the alien
by the spouse, where the alien has presented clear and convincing evidence that the
marriage is bona fide.

                                              3
denied that motion. The BIA treated her motion as a motion to reopen2 because she had

not alleged that the BIA had made any error of fact or law in its previous decision (the

standard for a motion to reconsider). The BIA then denied her second motion to reopen

because it exceeded the numerical limitations for motions to reopen. See 8 C.F.R. §

10103.2(c)(2). The BIA also stated that it did not find “any exceptional circumstances

to justify reopening on [its] own motion.”3 It noted that Lindaastuty “did not file her

prior motion pro se, but was represented by counsel. [Lindaastuty] married on November

20, 2004, and filed her prior motion on March 2, 2005, thus giving her over 3 months

and 1 week to get her documentation in order.” Lindaastuty filed a petition for review of

the BIA’s denial of her second motion to reopen which is the petition now before us.

       As noted, Lindaastuty was scheduled to appear for an interview regarding her

application for adjustment of status on June 24, 2005. However, because the BIA had

issued its decision on June 23, 2005, denying her second motion to reopen, the

Department of Homeland Security (“DHS”) took her into custody pursuant to what was

now a final order of removal.

       On July 15, 2005, Lindaastuty filed a petition for a writ of habeas corpus in the

district court pursuant to 28 U.S.C. § 2241 challenging her post-removal proceedings


       2
       Lindaastuty does not challenge the BIA’s characterization of her motion to
reconsider as a motion to reopen.
       3
       Generally, the BIA has the authority to reopen or reconsider a case sua sponte in
“exceptional situations.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003).

                                             4
detention. Pursuant to the REAL ID Act, the district court transferred Lindaastuty’s

habeas petition to us. We consolidated it with the petition for review.

                                    II. DISCUSSION

                     A. Petition for review of BIA’s June 23, 2005
                         order denying the motion to reopen.

       In challenging the BIA’s June 23, 2005, denial of her motion to reopen,

Lindaastuty argues that she is entitled to reopen based on a “change in circumstances,”

viz., the approval of her husband’s visa petition. Lindaastuty’s Br. at 12-14. She also

argues that she is entitled to reopening “as befit[s] any good citizen of the community.”

Id. at 13. In addition, she contends that “there is extreme and unusual hardship on the

part of her US citizen husband if she is deported to her native country, considering that

they were newly married at the time of her detention, and were looking forward to

hav[ing] a family in the US.”4 Id. at 13-14.

       However, she never addresses the BIA’s reasons for denying her motion to

reopen; i.e, that it was her second motion to reopen and, therefore, it exceeded the

numerical limitation on motions to reopen. Thus, she has waived that issue for purposes

of our review. See Emerson v. Thiel College, 296 F.3d 184, 190 n.5 (3d Cir. 2002)


       4
        To the extent that this argument can be construed as a challenge to the BIA’s
refusal to reopen sua sponte, we are without jurisdiction to entertain that challenge. See
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (“Because the BIA retained 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.”).

                                               5
(“Failure to set forth an issue in an appellate brief waives that issue on appeal.”).

Therefore, her petition for review must be denied.

                                  B. The habeas petition.

       As noted earlier, Lindaastuty was scheduled for an interview regarding her

application for adjustment of status on June 24, 2005. However, because the BIA denied

her second motion to reopen on June 23, 2005, the DHS took her into custody at that

hearing in furtherance of a final order of removal. Pursuant to that order, Lindaastuty

has been removed to Indonesia.

       In her habeas petition, Lindaastuty does not challenge the removal order, but does

challenge the legality of her detention based on her contention that the “use of the

adjustment of status procedure to surprise applicants with sudden reinstatement of their

deportation orders raises fundamental [due process] concerns.”5 Lindaastuty’s Br. at 9.

       However, the government concedes that because Lindaastuty is challenging the

legality of her detention after a final removal order has been entered (and not the removal

order itself), the district court had jurisdiction to entertain her habeas petition. See

Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (Supreme Court held that district court

retained habeas jurisdiction over challenges to post-removal-period detention even after


       5
        The government contends that it did not use the adjustment of status procedure to
“surprise” her. It claims that DHS scheduled her adjustment of status interview in the
ordinary course of processing visa applications, and that the BIA’s decision denying her
second motion to reopen the day before her interview was simply happenstance.
Government’s Br. at 9 n.4.

                                               6
changes the INA made in 1961 and 1996).

       Section 106(a)(1)(B) of the REAL ID Act adds a provision to the INA that

provides that a petition for review filed in the Court of Appeals “shall be the sole and

exclusive means for judicial review of an order of removal [n]otwithstanding any other

provision of law (statutory or nonstatutory), including § 2241 of title 28, United States

Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title.” 8

U.S.C. § 1252(a)(4) (added by REAL ID Act). However, the Conference Report

accompanying the REAL ID Act makes clear that the purpose of this provision, along

with related provisions of the REAL ID Act, was to “address the anomalies created” by

INS v. St. Cyr, 533 U.S. 289 (2001), under which criminal aliens, although precluded

from seeking habeas review of their removal orders in the Court of Appeals, could obtain

habeas review in the district court under § 2241. H.R. Rep. No. 109-72, reprinted in 151

Cong. Rec. H2813, H2873 (May 3, 2005). The Report specifically states that “section

106 would not preclude habeas review over challenges to detention that are independent

of challenges to removal orders. Instead, the bill would eliminate habeas review only

over challenges to removal orders.” Id.

       Because Lindaastuty’s habeas petition challenges the legality of her post-removal

proceedings detention and not the removal order, the appropriate remedy would be for us

to transfer Lindaastuty’s habeas petition back to the district court. However, because

Lindaastuty has already been deported and is, therefore, no longer in custody, the


                                             7
challenge to her detention is moot and the habeas petition must be dismissed.

                                 III. CONCLUSION

      For the above reasons, we will deny Lindaastuty’s petition for review and dismiss

her habeas petition as moot.




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