2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2013

Tarik Rachak v. Attorney General United States

Precedential or Non-Precedential: Precedential

Docket No. 12-3864

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PRECEDENTIAL

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 LAR 34.1(a)

January 23, 2013

Before: SLOVITER, CHAGARES and GREENBERG, 

Circuit Judges.

(Filed: 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 Franklin 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 20044
3

Christina B. Parascandola, Esq.

United States Department 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 admitted 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 “Accelerated 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 program 
4

and on February 16, 2011, Rachak pled guilty 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 

mounted 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 his PCRA petition 

had been denied at the trial level “almost a month ago,” but 

was 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 noted 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). Rachak’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 final 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 granted. 

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 never 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); 

see 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 

determinations 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 

[Immigration and Nationality Act].” Sukwanputra, 434 F.3d 

at 634. See generally Jarbough, 483 F.3d at 190 (“Recasting 

challenges to factual or discretionary determinations as due 

process or other constitutional claims is clearly insufficient to 
7

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, 1284-85 (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 was 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 abused its discretion by not 

granting her a continuance does not present a constitutional 

claim or issue of law that this court 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 not 

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 have 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 pendency 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. In 
8

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). Since 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 inadmissible 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, the 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 not 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 

alien 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 residency 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 Rachak’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 The mere existence of the 

waiver provision is immaterial to our analysis.

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

 

4

The 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 removal. As a result, we will 

deny the remainder of the petition for review. 

IV.

For the foregoing reasons, we will dismiss the petition 

in part and deny it in part.