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


3-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2623




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-2623
                                   ________________

                                  GARPREET KAUR,
                                           Petitioner

                                            v.

                            ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                           Respondent
                      ____________________________________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. 75-795-880)
                Immigration Judge: Honorable Margaret R. Reichenberg
                    ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 3, 2006

     BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES

                                 (Filed: March 7, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Petitioner, Garpreet Kaur, petitions for review of a final order of the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will dismiss the petition.
                                             I.

       Kaur, a native and citizen of India, entered the United States at New York City on

March 3, 1998, without inspection. Removal proceedings were commenced on March 27,

1998, by the issuance of a Notice to Appear charging Kaur with being inadmissible

pursuant to INA § 212(a)(7)(A)(i)(I). Kaur conceded the charge of removability, and

applied for asylum and withholding of removal. At the conclusion of the merits hearing

on May 28, 1998, the Immigration Judge (“IJ”) denied Kaur’s applications for asylum and

withholding of removal, and ordered her removed. It does not appear that Kaur appealed

the IJ’s decision. On May 21, 2004, nearly six years after the IJ ordered her removed,

Kaur filed a Motion to Reopen/Change Venue with the Immigration Court. The IJ denied

Kaur’s motion in an Order dated June 4, 2004, on the ground that Kaur had been removed

from the United States by the former-INS on September 17, 1998, and for the alternative

reason that her motion to reopen had been untimely filed. Although Kaur, through

counsel, originally appealed the IJ’s decision, she later filed a motion with the BIA

seeking to withdraw that appeal saying, “I am not willing to pursue this case any more as

I am planning to go back to my native country, India, in the near future.” Having been

advised that the appeal had been withdrawn, the BIA returned the record to the

Immigration Court without further action in an order dated August 6, 2004.

       Kaur returned to the Immigration Court on December 14, 2004, with a second

Motion to Reopen/Change Venue, filed pro se, that raised arguments “virtually identical”


                                             2
to those set forth in her first motion. The IJ noted, however, that Kaur failed to admit that

she had been previously removed from the United States, and failed to even acknowledge

that she had filed another motion to reopen which had been denied and that she had

abandoned her appeal to the BIA. In a decision dated January 7, 2005, the IJ denied

Kaur’s second motion to reopen. The IJ initially determined that, as argued by the

Department of Homeland Security (“DHS”), the court was without jurisdiction under 8

C.F.R. § 1003.23(b) to consider her motion given her removal from the country on

September 17, 1998. The IJ noted that Kaur failed to address the issue of her removal

and/or apparent subsequent reentry. The IJ further determined that, even if there were

any question as to whether Kaur actually departed the country in September 1998, the

motion to reopen was nonetheless untimely filed and in violation of the numerical

limitation placed on such motions by 8 C.F.R. § 1003.23(b)(1). The IJ warned Kaur that

the filing of any additional motions to reopen based on the same information contained in

her first and second reopen motions would be deemed frivolous and denied on that basis.

The BIA affirmed the IJ’s decision without opinion. Kaur filed a timely petition for

review.

                                             II.

       Respondent contends that Kaur’s petition for review should be dismissed because

she failed to exhaust administrative remedies insofar as she did not challenge the IJ’s

denial of her motion to reopen on appeal to the BIA, and because Kaur waived the issue


                                             3
of whether the IJ committed an abuse of discretion in denying her motion to reopen by

failing to raise such issue in her brief to this Court. Respondent’s contentions are not

without merit.

       As respondent correctly notes, 8 U.S.C. § 1252(d)(1) provides for judicial review

of final orders of removal “only if ... the alien has exhausted all administrative remedies

available to the alien as of right.” We reiterated that requirement in Abdulrahman v.

Ashcroft, 

, 594-95 (3d Cir. 2003), wherein we stated that “an alien is

required to raise and exhaust his or her remedies as to each claim or ground for relief if he

or she is to preserve the right of judicial review of that claim....” See also Kopec v. Tate,

, 775 n.5 (3d Cir. 2004), quoting Laborers’ Int’l Union v. Foster Wheeler

Corp., 

, 398 (3d Cir.1994) (“An issue is waived unless a party raises it in its

opening brief, and for those purposes a passing reference to an issue ... will not suffice to

bring that issue before this court.”). A review of the record in this case reveals that Kaur

makes only a general statement that the IJ erred in denying her second motion to reopen,

and wholly fails to address the substance of the IJ’s decision in her appeal to the BIA.

Likewise, in her brief to this Court, Kaur makes no mention of the IJ’s decision that her

second motion for reconsideration was barred on jurisdictional grounds or, alternatively,

was untimely filed. Instead, petitioner merely argues the merits of her underlying asylum

claim – an issue not before us since no appeal was taken to the BIA and no subsequent

petition for review filed with this Court within the time period prescribed by 8 U.S.C. §


                                              4
1252(b)(1) – and attempts to raise an issue regrading her eligibility to adjust status based

on her marriage to a United States citizen.

       Even assuming arguendo that Kaur’s claims were properly exhausted, we would

nonetheless deny her petition for review. The denial of a motion to reopen is reviewed

for an abuse of discretion. Lu v. Ashcroft, 

, 131 (3d Cir. 2001). Where, as

in this case, the BIA adopts the IJ’s decision, the Court reviews the IJ’s decision. Gao v.

Ashcroft, 

, 271 (3d Cir. 2002). Even putting aside the IJ’s determination

that it lacked jurisdiction to review Kaur’s reopen motion because of her 1998 removal

from the United States, any challenge Kaur might attempt to raise with respect to the IJ’s

determination that the reopen motion was untimely filed is meritless. The IJ correctly

concluded that, because Kaur offered nothing other than the bare allegation that her “life

was still in danger” in India, she failed to overcome the statutory time limitations for

filing a motion to reopen, and thus was required to file a motion to reopen within 90 days

of the final order of removal pursuant to 8 C.F.R. § 1003.23(b)(1) and (b)(4)(i). See also

8 C.F.R. § 1003.2(c)(2). Kaur’s motion, as noted, was filed more than six years later.

Further, without any corroborating information as to changed country conditions in India

– either specific to her or in general – petitioner failed to demonstrate that an exception

was warranted to the numerical limitations set out in 8 C.F.R. § 1003.23(b)(1).

                                              III.

       Accordingly, for the foregoing reasons, we will dismiss Kaur’s petition for review.