                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2167




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"Valdez v. Atty Gen USA" (2004). 2004 Decisions. Paper 202.
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                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                      __________

                         No. 03-2167
                         __________

                     GABRIEL VALDEZ
                                   Petitioner,

                               v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
  and BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES
                (BCIS) DISTRICT DIRECTOR
                                     Respondents.
                        __________

             On Petition for Review from the Board
                    of Immigration Appeals
                  U.S. Department of Justice
                    (BIA No. A75-873-257)
                           __________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                     September 28, 2004
                        ___________

       Before: ROTH, BARRY, and GARTH, Circuit Judges

               (Opinion Filed: October 21, 2004)
                         __________

                           OPINION
                          __________
Garth, Circuit Judge:

        Gabriel Valdez petitions for review of an order of the Board of Immigration

Appeals (“BIA”). That order affirmed, without opinion, the decision of the Immigration

Judge (“IJ”), which had denied Valdez’s request for a continuance to allow for final

adjudication of his I-360 petition and which had granted voluntary departure to the

Dominican Republic. For the reasons given below, we will dismiss the Petition as moot.

                                             I.

       Because we write exclusively for the benefit of the parties who are well acquainted

with the facts and procedural posture of the present action, we will recount only those

matters relevant to the issues before us. Valdez, a native and citizen of the Dominican

Republic, entered the United States in December 1993 on a B1/B2 visa. On November

18, 1994, Valdez married a United States citizen, Ms. Juana Ortiz. Ms. Ortiz filed an I-

130 immediate relative petition on Valdez’s behalf, which she subsequently withdrew,

claiming that her marriage to Valdez was not a “bona fide marital relationship.” As a

result, Valdez’s I-130 petition was never granted.

       On November 27, 1998, the INS filed a Notice to Appear, charging Valdez with

removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien in the United States who had

not been admitted or paroled. At the May 4, 2000 merits hearing before the IJ, Valdez

conceded removability, but sought an adjustment of his status pursuant to an I-360

petition (entitled “Petition for Amerasian, Widow, or Special Immigrant”) and voluntary



                                            -2-
removal. Valdez had previously filed the I-360 petition in June 1999, and the petition

was subsequently denied on April 10, 2000. He thus requested a continuance from the IJ

to pursue an appeal of the I-360 denial to the Administrative Appeals Unit (“AAU”). On

May 4, 2000, the IJ denied the request for a continuance, found Valdez removable as

charged and granted his request for voluntary removal. On March 26, 2003, the BIA

affirmed, without opinion, the IJ’s decision.

       On April 24, 2003, Valdez filed a timely appeal with this court pursuant to 8

U.S.C. § 1252(a). Thereafter, the AAU denied Valdez’s appeal of his I-360 petition.

                                              II.

       The brief of the government argues that Valdez’s Petition is moot, stating that

inasmuch as it is predicated upon the denial of his request for a continuance to pursue an

appeal of his I-360 petition, which has since been decided by the AAU, there is no relief

this court can grant. We agree.

       The Constitution limits this court’s jurisdiction to the adjudication of actual cases

and controversies. U.S. CONST. art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 315-16

(1974) (per curiam). “[A] case is moot when the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395

U.S. 486, 496 (1969). The court’s ability to grant effective relief lies at the heart of the

mootness doctrine. County of Morris v. Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir.

2001). That is, “[i]f developments occur during the course of adjudication that eliminate



                                              -3-
a plaintiff’s personal stake in the outcome of a suit or prevent a court from being able to

grant the requested relief, the case must be dismissed as moot.” Blanciak v. Allegheny

Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). This requirement that a case or

controversy be “actual [and] ongoing” extends throughout all stages of federal judicial

proceedings, including appellate review. Khodara Envtl., Inc. v. Beckman, 237 F.3d 186,

193 (3d Cir.2001); see also New Jersey Tpk. Auth. v. Jersey Cent. Power & Light, 772

F.2d 25, 31 (3d Cir. 1985).

       Here, as we have indicated, prior to our review there has been final adjudication of

Valdez’s I-360 petition by the AAU, thereby divesting this court of the ability to grant

effective relief. We must therefore dismiss this Petition for want of jurisdiction.1




       1
         In light of our holding that Valdez’s Petition is moot, we need not reach the merits of the
other issues raised by Valdez in his brief, including his complaint that the BIA violated his due
process rights by affirming the IJ’s decision without opinion. See Dia v. Ashcroft, 353 F.3d 228
(3d Cir. 2003) (en banc) (upholding the constitutionality of the BIA’s summary affirmance
procedure).

                                                -4-
