2013 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-21-2013 

# T a r i k R a ch ak v

. Att or ne y Ge ne r al U nit ed S t a t es

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ock e t N o . 12-3864

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2013

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2013 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. R e c omme nde d C it a t ion

" T a r i k R a ch ak v

. Att or ney Ge ne r al U

nit e d S t a t e s " (2013). 2013 D e cisio n s

. P a pe r 283. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2013/283PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 12

- 3864

___________

TARIK RACHAK

,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

, Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A055

- 045

- 704 ) Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit L AR 3 4.1(a)

January 23, 2013

Before: SLO VITER, CHAGARES and GREENBERG

,

Circuit Judges

.

(F iled : August 21, 2013 )2 Anser Ahmad, Esq. Advanced Immigration Law Group 114 Walnut Street

, Suite 4 Harrisburg, PA 17101

- 0000 Counsel for Petitioner Tarik Rachak

Eric H. Holder, Jr., Esq. United States Department of Justice Office of Immigration Litigation, Civil Division
P.O. Box 878 Ben Franklin Station Washington, DC 20044

Thomas W. Hussey, Esq. United States Department of Justice Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Fra nklin Station Washington, DC 20044

Margaret A. O’ Donnell, Esq. United States Department of Justice Office of Immigration Litigation, Civil Division
P.O. Box 878 Ben Franklin Station Washington, DC 200443 C hristina B. Parascandola, Esq. United States De partment of Justice Office of Immigration Litigation, Civil Division
P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent Attorney General

_________

OPINION

_________

CHAGARES, Circuit Judge

.

Tarik Rachak petitions for review of a Board of Immigration Appeals (“BIA”) order deeming him ineligible for cancellation of removal and affirming the denial of a continuance. We will dismiss the petition in part and deny it in part.

I.

Rachak , who is a citizen of Morocco, was admitte d to the United States as a lawful permanent resident in August of
2002. In 2006, he was arrested and charged with possession of marijuana under 35 Pa. Cons. Stat. § 780

- 113(a)(31). Rachak was placed on probation with supervision under Pennsylvania’s “Ac celerated Rehabilitative Disposition”

program, Administrative Record (“A.R.”) 217, but did not comply with the conditions of the program . Thereafter, the state court terminated Rachak’s participation in the program4 and on February 16, 2011, Rachak pled gu ilty to the charge arising out of his 2006 marijuana possession arrest. A.R.
214

- 16.

On July 20, 2011, Rachak pled guilty to charges of possession of cocaine and drug paraphernalia under 35 Pa. Cons. Stat. §§ 780

- 113(a)(16) and (a)(32) in the York County Court of Common Pleas . He was sentenced to two consecutive terms of twelve months of probation. A.R. 186

- 202.

On September 29, 2011, the Department of Homeland Security charged Rachak with being removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense in July 2011

. Rachak then filed

a Pennsylvania Post Conviction Relief Act (“ PCRA ”) petition attacking his July 2011 conviction

. For a time, he successfully sought immigration continuances while he

moun ted his collateral attack, although the Government opposed some of these requests

.

At a hearing on May 24, 2012, Rachak’s attorney advised the Immigration Judge (“IJ”) that h is PCRA petition had been denied at the trial level “almost a month ago,” but

w as currently on appeal before the Pennsylvania Superior
Court

. A.R. 119. 1 The IJ issued an oral decision declining to grant any further continuances . In addition, the IJ ordered Rachak removed and not ed that his 2006 conduct rendered

1 The Pennsylvania Superior Court subsequently affirmed the denial of his PCRA petition. Pennsylvania v. Rachak

, 62 A.3d 389 (Pa. Super. Ct. 2012). Rac hak’s petition for allowance of appeal was denied by the Pennsylvania Supreme Court. Pennsylvania v. Rachak , 67 A.3d 796 (Pa. 2013).5 him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) because he had not accrued seven years of continuous residence in the United States . A.R. 63

- 65. The BIA affirmed, A.R. 3

- 5, and this timely petition for review followed.

Rachak does not argue that the f inal order of removal itself was erroneously granted. Instead, Rachak contends that the IJ and BIA wrongly determined that he was ineligible for cancellation of removal. He also contends that his motion for an additional continuance should have been gran ted.

II.

We must first address the scope of our jurisdiction.
Because Rachak is a criminal alien found removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) , our review of the agency’s determination is limited to “ constitutional claims or questions of law

. ” 8 U.S.C. § 1252(a)(2)(C)

- (D). To fall under § 1252(a)(2)(D)’s grant of jurisdiction, an issue must be either a “purely legal inquir[y]” or raise a “colorable” claim that a
constitutional violation has occurred. Roye v. Att’y Gen. of
U.S. , 693 F.3d 333 , 339 (3d Cir. 2012)

.

A.

The first issue Rachak raises in this appeal is whether he was statutorily eligible for cancellation of removal. We hold that this issue involves a purely legal question concerning the operation of the “stop

- time rule” of 8 U. S.C. § 1229b(d)(1)(B). See Baraket v. Holder , 632 F.3d 56, 58 (2d Cir. 2011) (per curiam) (“ This appeal presents solely a question of law: how to properly interpret 8 U.S.C. §6 1229b(d)(1). ”). Accordingly, we have jurisdiction to consider
whether Rachak was eligible for cancellation of removal.

B.

Next we examine whether we have jurisdiction to consider Rachak’s argument that the IJ “ erred in denying a continuance in this case, and the BIA erred in affirming this
decision .” Rachak Br. 19. We have ne ver issued a precedential opinion deciding whether we have jurisdiction to review claims of this sort in the constrained context of criminal

- alien petitions. However, our case law provides helpful guideposts to resolve this issue.

The denial of a motion for a continuance is discretionary. Khan v. Att’y Gen. of U.S.

, 448 F.3d 226, 233 (3d Cir. 2006) . We have held that discretionary decisions, as here, do “not raise a constitutional claim or question of law covered by [ § 1252(a)(2)(D)’s] judicial review provision.” Sukwanputra v. Gonzales , 434 F.3d 627, 635 (3d Cir. 2006);

s ee Jarbough v. Att’y Gen. of U.S. , 483 F.3d 184, 188 (3d Cir. 2007) (“[I]t is clear that courts of appeals continue to have no jurisdiction to review discretionary and factual determi nations presented in petitions for review.”). Specifically, we have recognized that “[d]espite the special treatment accorded constitutional claims and questions of law, § 1252(a)(2)(D) does not exempt . . . discretionary challenges from the jurisdiction

- stripping provisions of the [Im migration and Nationality Act].” Sukwanputra , 434 F.3d
at 634. See generally Jarbough , 483 F.3d at 190 (“R ecasting challenges to factual or discretionary determinations as due process or other constitutional claims is clear ly insufficient to7 give this Court jurisdiction under § 1252(a)(2)(D).”). 2 As a result, we conclude that we have no jurisdiction over Rachak’s challenge to the denial of his motion for a continuance. We note that our holding today is in accord with those of our sister Courts of Appeals. See, e.g.

, Waugh v. Holder , 642 F.3d 1279, 128 4

- 85 (10th Cir. 2011) (“[P] etitioner also argues the IJ and BIA erred in denying his request to continue the removal proceedings until his motion to withdraw his guilty plea wa s resolved in state court

. . . . This challenge raises neither a constitutional nor a legal issue, so we are without jurisdiction to review it. ”); Ogunfuye v. Holder , 610 F.3d 303, 307 (5th Cir. 2010) (holding that petitioner’s “ argument that the IJ abuse d its discretion by not granting her a continuance does not present a constitutional claim or issue of law that this cou rt has jurisdiction to consider”); Alvarez Acosta v. U.S. Att’y Gen. , 524 F.3d 1191, 1197 (11th Cir. 2008) (holding that the denial of a continuance is discretionary and that the court lacks jurisdiction under § 1252(a)(2)(D) to review such a denial). 3

2 Rachak does not contend that the denial of his motion for a continuance constituted a purely legal question and he did n ot directly argue that the denial raised a constitutional issue. To the extent Rachak might have raised a due process claim flowing from the fact that the Pennsylvania appellate courts had not yet ruled on his PCRA challenge, it would have failed as we ha ve held that the pendency of a collateral attack on a conviction does not negate the finality of the conviction for immigration purposes. See Paredes v. Att’y Gen. of U.S. , 528 F.3d 196, 198

- 99 (3d Cir. 2008). Of course, the agency is free to take the pe ndency of those matters into account when ruling on continuance motions.

3 Rachak ’s principal argument in support of our jurisdiction is
based on Khan , where we noted that “we have jurisdiction to review an IJ’s denial of a continuance.” 448 F.3d at 233. In8 Accordingly, because we lack jurisdiction to review the agency’s denial of a continuance, we will dismiss this petition for review in part.

III.

We exercise de novo review of the agency’s interpretation of the stop

- time provision of 8 U.S.C. § 1229b(d)(1)(B) , subject to applicable principles of deference. See Briseno

- Flores v. Att’y Gen. of U.S. , 492 F.3d 226, 228 (3d Cir. 2007) . S ince the BIA issued its own decision on the merits of this claim, we review only its
decision. Hanif v. Att’y Gen. of U.S. , 694 F.3d 479, 483 (3d Cir. 2012)

.

The Attorney General may cancel removal of a permanent

- resident alien who is otherwise inadmis sible or deportable if, inter alia , the alien has “resided in the United States continuously for 7 years after having been admitted in

so doing, we held that 8 U.S.C. § 1252(a)(2)(B)(ii), which creates a jurisdictional bar for the review of decisions “specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security,” did not apply to the denial of a continuance “[b]ecause the IJ’s authority to rule on a continuance motion is not specified under [8 U.S.C. §§ 1151

- 1378] to be in the discretion of the Attorney General.” Id. (quotation marks omitted). Here, as
in Khan

, § 1252(a)(2)(B) (ii) does not bar review of the denial of a continuance. Rather, t he subsection applicable to this case is § 1252(a)(2)(C), which deprives us of jurisdiction if the final order of removal is due to the commission of certain criminal offenses. Khan was no t a criminal

- alien case.9 any status .” 8 U.S.C. § 1229b(a)(2). The statute terminates the accrual of the period of residence when the al ien has “committed an offense” that renders him either
inadmissible or removable. Id. § 1229b(d)(1)(B). Once the period of continuous residence is terminated , it is not restarted by subsequent events. See Briseno

- Flores , 492 F.3d

at 230

- 31. The parties agree that the 2006 conduct did not
render Rachak removable, but it did plainly render him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) because it was “a violation of . . . any law or regulation of a State . . . relating to a controlled substance.” 4

Tacitly conceding his inadmissibility, Rachak contends that because “a waiver was available to Petitioner to waive the inadmissibility under this provision,” the “2006 offense did not stop the clock on the requisite seven (7) years of
continuous reside ncy in the U.S.” Rachak Br. 15. Specifically, 8 U.S.C. § 1182(h) permits the Attorney General to waive the inadmissibility of an alien in certain circumstances relating “to a single offense of simple possession of 30 grams or less of marijuana.” But Rac hak’s argument suffers from a fatal flaw: he did not apply for this waiver before the agency, and indeed the record suggests that he has not invoked it before now. 5 T he mere existence of the waiver provision is immaterial to our analysis.

We can discern no reason to disturb the BIA’s stop

-

4 T he inadmissibility carve

- out of 8 U.S.C. § 1182(a)(2)(A)(ii) does not apply to controlled

- substance convictions , but only to crimes involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I)

. 5 We need not determine whether he would have actually been eligible.10 time decision as we agree that Rachak did not possess the required seven years of continuous residence for the purpose of applying for cancellation of rem oval. As a result , we will deny the remainder of the petition fo r review.

IV.

For the foregoing reasons, we will dismiss the petition in part and deny it in part.