Sheraz v. Gonzales
Sheraz v. Gonzales
Opinion of the Court
SUMMARY ORDER
Petitioner Akhtar Sheraz (“Sheraz”) seeks review of a final order of the Board of Immigration Appeals (“BIA”), dated October 12, 2002, denying a motion to reopen. We review the denial to reopen proceedings for an abuse of discretion. Twum v. INS, 411 F.3d 54, 55 (2d Cir. 2005). We assume familiarity with the facts, procedural history, and issues on appeal, which we discuss to the extent necessary.
Sheraz is a citizen of Pakistan who entered the United States as a visitor on February 26, 1990. In January 1994, Sheraz applied for asylum and withholding of removal, claiming that he had suffered persecution based on his political activities in Pakistan in 1989 and that he feared persecution if he returned. On April 25, 1995, the Immigration and Naturalization Service (“INS”) issued Sheraz an Order to Show Cause, initiating proceedings to deport him for entering the United States as a non-immigrant without a valid entry document.
At his hearing on May 21, 1997, Sheraz withdrew his applications for asylum and withholding of removal with prejudice. It appears that he did so because his political party had gained power in Pakistan in February 1997. The Immigration Judge (“IJ”) confirmed with Sheraz that the withdrawal “with prejudice” basically “precluded [him] from applying for political asylum in the future, at least insofar as anything has happened to [him] up until [the date of the withdrawal].”
At that point in the proceedings, however, Sheraz had also applied for suspension of deportation, pursuant to section 244(a) of the Immigration and Nátionality Act of 1952 (“INA”), which was codified at 8 U.S.C. § 1254(a) and repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).
On July 24, 2002, Sheraz filed a motion to reopen with the BIA, pursuant to then-existing 8 C.F.R. § 3.2 (2002).
Sheraz timely filed a petition for review from that decision with this Court and raises two primary issues. First, Sheraz contends that the BIA abused its discretion in denying the motion to reopen with respect to the asylum petition. Second, Sheraz attempts to use the petition for review to challenge the underlying 1999 removal order, that is, Sheraz argues that IIRIRA’s “stop time” provisions should not have been applied to him and that he is entitled to a hearing on his application for suspension of deportation.
First, with respect to the asylum application, we find that the BIA did not exceed its allowable discretion in denying the motion to reopen. Under 8 C.F.R. § 3.2 (2002), an alien was required to file a motion to reopen within ninety days of the final administrative order closing the proceedings, id. § 3.2(c)(2), except that the time limitation would not apply where the alien seeks “[t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing,” id. § 3.2(c)(3)(ii).
We recognize that the BIA’s one-page decision is somewhat conclusory and that denying a motion to reopen based on only summary or conclusory statements may, in some cases, constitute abuse of discretion. See Twum, 411 F.3d at 55. In this case, however, Sheraz’s motion to reopen is itself rather conclusory. The only previously unavailable evidence attached to the motion is a State Department Country Report, released in March 2002, which discusses the conditions in Pakistan in 2001. The report covers the primary “changed circumstance” in the country: General Pervez Musharraf’s bloodless coup in October 1999 ousting former Prime Minister Nawaz Sharif, who had led the political party with which Sheraz was affiliated. But the motion to reopen does not expressly refer to any findings in the Country Report and does not describe why the Report shows that Sheraz has a reasonable fear of persecution if he returns to Pakistan. As the Supreme Court has explained, the BIA has a strong interest in the finality of its proceedings and “Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); see also INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under the circumstances and even taking the Country Report into account, Sheraz has not made a sufficient showing that he would be entitled to asylum if the proceedings were reopened. We thus cannot find that it was an abuse of discretion to deny the motion to reopen based on the asylum application.
Second, Sheraz attempts to use this petition for review of the motion to reopen as a vehicle to attack the underlying removal order and the denial of his application for suspension of deportation. Sheraz did not file a petition for review of the BIA’s 1999 removal order. We thus have no jurisdiction to consider his claims that the IJ and BIA erred or violated his due process rights in the underlying removal proceedings by denying him relief under former INA section 244(a). See Zhao v. United States, 265 F.3d 83, 90 (2d Cir. 2001) (explaining that “we are precluded from passing on the merits of the underlying [removal] proceedings” on a petition for review of the denial of a motion to reopen); see also Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
We have considered all of Sheraz’s arguments and find them to be without merit. For the foregoing reasons, petition for review is denied.
. Sheraz had entered the United States with his wife, Tayyava Sheraz, who was issued an Order to Show Cause initiating deportation proceedings at the same time. Their proceedings were conducted together and they both moved to reopen their cases before the BIA, but only Akhtar Sheraz has brought this petition.
. Pub.L. No. 104-208, Div. C., 110 Stat. 3009. Section. 304(a) of IIRIRA eliminated suspension of deportation and replaced it with a new form of relief called cancellation of removal, which has stricter eligibility standards. See id. § 304(a)(3), 110 Stat. at 3009-587 (codified at 8 U.S.C. § 1229b). The elimination of suspension of deportation did not apply to aliens, such as Sheraz, who were already in deportation proceedings at the time of IIRIRA’s enactment. See Rojas-Reyes v. INS, 235
. That provision has been re-codified as 8 C.F.R. § 1003.2.
. See also 8 U.S.C. § 1229a(c)(6)(i), (ii) (Supp.
Reference
- Full Case Name
- Akhtar SHERAZ v. Alberto R. GONZALES, Attorney General of the United States, Edward J. McElroy, District Director
- Status
- Published