2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-12-2011

Othmane Ouadah v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3780

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3780

_____________

OTHMANE OUADAH, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

______________

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

(Agency No. A079 733 409)

Immigration Judge: Honorable Charles M. Honeyman

______________

Submitted Under Third Circuit LAR 34.1(a)

December 16, 2010

______________

Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

(Opinion Filed: January 12, 2011)

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge

Othmane Ouadah (“Ouadah” or “Petitioner”) appeals from a decision of the Board 
2

of Immigration Appeals (“BIA”) denying his motion to remand.1 Since the BIA did not 

abuse its discretion in denying this motion, we will affirm the BIA‟s decision. 

I. Background

We write solely for the benefit of the parties and recount only the essential facts.

Ouadah, a native and citizen of Algeria, entered the United States on September 

16, 1994, as a non-immigrant visitor. He was granted an extension of his visa allowing 

him to stay in the United States until September 15, 1995. He overstayed his visa. The 

Immigration and Naturalization Service2issued a Notice to Appear (“NTA”) charging 

Ouadah with being removable, pursuant to § 237(a)(1)(B) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(1)(B), on January 9, 2003. The NTA ordered 

Ouadah to appear for a hearing on February 18, 2004. (Admin. R. 716-18.)

After several continuances, the IJ held a hearing on May 5, 2008. (Admin. R. 132-

 

1

 Ouadah does not appeal the BIA‟s dismissal of his appeal from the Immigration Judge‟s 

(“IJ”) decision denying his motion for a continuance and denying his application for 

asylum, withholding of removal, and relief pursuant to the Convention Against Torture 

(“CAT”). In fact, Ouadah concedes that the request for asylum is presumptively timebarred and not subject to review before this Court. (Br. of the Pet‟r 1 n.1.)

2

 On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an 

independent agency within the Department of Justice and its functions were transferred to 

the newly formed Department of Homeland Security and placed under the Bureau of 

Immigration and Customs Enforcement. See Homeland Security Act, 116 Stat. 2135, 

Pub. L. 107-296 (2002). For the sake of simplicity, because relevant events occurred 

both before and after that change, we will refer to the Bureau of Immigrations and 

Customs Enforcement as well as the Immigration and Naturalization Service as the 

“government.”
3

93.) At that hearing, the government offered to allow Ouadah to voluntarily depart the

country. Ouadah initially accepted this offer, but, prior to the IJ entering an appropriate 

order, Ouadah changed his mind, and sought to pursue his application for asylum, 

withholding of removal and relief under the CAT. Upon completion of Ouadah‟s 

testimony, the IJ continued the proceedings to issue his decision. On May 15, 2008, 

before the IJ issued his decision, Ouadah again changed his mind and opted to withdraw 

his application for relief and accept the government‟s offer of voluntary departure. 

(Admin. R. 194-203.) The hearing was continued to allow the government to consider 

reinstating the offer. At a hearing on May 21, 2008, the government confirmed that the 

offer was still available. (Admin. R. 204-08.) Ouadah withdrew his application for 

relief, and the IJ continued the hearing to November 12, 2008. At that time, the IJ 

proposed the entry of an order of voluntary departure. The November 12th hearing was 

continued until November 24, 2008.

On November 24, 2008, Ouadah appeared before the IJ. (Admin. R. 209-18.) 

Instead of proceeding with issuance of the order of voluntary departure, Ouadah sought to 

substitute counsel, continue the proceedings, and reinstate his application for relief. The 

continuance was based upon an alleged change in circumstances; namely, the August 21, 

2008 attack on Ouadah‟s brother.3 In support of the motion, Ouadah submitted his 

 

3

 In Ouadah‟s original affidavit, he refers to the attack having occurred in November 

2008. (Admin. R. 681.) Subsequently, he, and his family members, state in affidavits
4

affidavit (Admin. R. 680-81), and his counsel proffered that if the continuance was

granted, affidavits from family members and medical records from the brother‟s 

treatment would be provided (Admin. R. 213-14). The IJ granted the motion to substitute 

counsel but denied the request to continue, noting that Ouadah did not present “any 

material change in circumstances that would suggest that the respondent should be able to 

reinstate his application.” (Admin. R. 50.) The IJ then ordered Ouadah removed. 

Ouadah appealed to the BIA. Before the BIA, Ouadah conceded that the IJ found 

that he failed to establish prima facie eligibility for the relief he sought. (Admin. R. 17.) 

Based on that concession, the BIA dismissed Ouadah‟s appeal of the denial of the motion 

for a continuance as moot. The BIA also denied Ouadah‟s motion to remand,4stating 

that “there is no indication that the information was previously unavailable.” (Admin. R. 

3.) Specifically, the BIA expressed concern that Ouadah offered no reason as to why the 

affidavits from his mother and sister, dated November 4, 2008, and the medical records, 

dated August 21, 2008, were not available at the time of the hearing before the IJ on 

November 24, 2008. (Id.)

 

that the attack occurred on August 21, 2008. (Admin. R. 31, 33, 37.) The medical 

records substantiating the attack are also dated August 21, 2008. (Admin. R. 42.)

4 The BIA treated Ouadah‟s appeal as (1) an appeal from the decision of the Immigration 

Judge finding him removable, denying his request for a continuance, and ordering him 

removed and (2) a motion to remand. Although Ouadah did not specifically file a motion 

to remand, the BIA treated the appeal as a motion to remand based on the affidavits 

attached to Ouadah‟s brief. 
5

Ouadah now seeks review of the BIA‟s denial of his motion to remand. 

II. Jurisdiction

The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We 

have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of the BIA. Kucana 

v. Holder, 130 S.Ct. 827 (2010).

III. Standard of Review5

“We review the BIA‟s denial of a motion to reopen for abuse of discretion, and 

review its underlying factual findings related to the motion for substantial evidence. The 

BIA‟s denial of a motion to reopen may only be reversed if it is „arbitrary, irrational, or 

contrary to law.‟” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (citing Lu v. 

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); quoting Sevoian v. Ashcroft, 290 F.3d 166, 

170 (3d Cir. 2002)).

IV. Analysis

“The Supreme Court has identified three principal grounds on which the 

Immigration Judge or the Board may deny a motion to reopen immigration proceedings. 

First, it may hold that the movant has failed to establish a prima facie case for the relief 

sought . . . . Second, it may hold that the movant has failed to introduce previously 

unavailable, material evidence that justifies reopening, as required by regulation. Third, 

 

5

 “[F]or purposes of jurisdiction we treat a motion to remand as a motion to reopen. We 

consider these devices as equivalent for jurisdictional and standard of review purposes.” 

Kortynyuk v. Ashcroft, 396 F.3d 272, 282 (3d Cir. 2005) (internal citations omitted).
6

in „cases in which the ultimate grant of relief [being sought] is discretionary (asylum, 

suspension of deportation, and adjustment of status, but not withholding of deportation),‟ 

the Board can „leap ahead . . . over the two threshold concerns (prima facie case and new 

evidence/reasonable explanation) and simply determine that even if they were met, the 

movant would not be entitled to the discretionary grant of relief.‟” Sevoian, 290 F.3d at 

169-70 (quoting INS v. Abudu, 485 U.S. 94, 105 (1988), and citing 8 C.F.R. § 3.2(c)

(currently numbered as 8 C.F.R. § 1003.2(c))). These three grounds are independent of 

each other. Abudu, 485 U.S. at 104. Further, both this Court and the Supreme Court of 

the United States have emphasized that motions to reopen in immigration proceedings are 

disfavored. See, e.g., id. at 107; Sevoian v. Ashcroft, 290 F.3d at 171-72.

Here, the BIA concluded that Ouadah had not provided any explanation as to why 

the evidence introduced before the BIA was previously unavailable. Ouadah argues 

before this Court that the fact the affidavits from his mother and sister were dated prior to 

the date of the hearing before the IJ does not mean that Ouadah received them before the 

hearing. There is no evidence in the record to support this proposition. At present, it is 

conjecture. Further, Ouadah did not provide any explanation for the failure to present 

these affidavits to the BIA. Rather, as the BIA notes, no explanation for why the 

evidence was previously unavailable was offered. This conclusion is not “arbitrary, 

irrational, or contrary to law.” 

It is the applicant‟s burden to demonstrate that the evidence was previously 
7

unavailable, and the burden is a heavy one. Abudu, 485 U.S. at 110. Ouadah failed to

satisfy that burden. Offering conjectural explanations now is insufficient; Ouadah should 

have provided an explanation to the BIA. He did not. Therefore, we will affirm the 

BIA.6 

V. Conclusion

For the reasons stated above, this Court will affirm the BIA‟s decision denying 

Ouadah‟s motion to remand.

7

 

6

 Ouadah argues that he has established a prima facie claim for relief. Since the three 

grounds listed above are independent of each other, Abudu, 485 U.S. at 104, the BIA can 

base its grant or denial of a motion to reopen on any one of them. In this case, the BIA 

based its decision on the second ground — the failure to provide previously unavailable 

material evidence. Therefore, this Court need not discuss the first ground, as Ouadah 

does. These factors are not conjunctive. The BIA has the option of choosing the basis 

for its decision. Id. at 105-6 (“[T]he BIA has discretion to deny a motion to reopen even 

if the alien has made out a prima facie case for relief.”).

7

 In passing, Ouadah mentions that the BIA “denied [him] due process by failing to 

remand this matter for further proceedings.” (Br. of the Pet‟r 2.) On two other occasions, 

Ouadah mentions a potential due process claim in his brief. (Id. at 21, 26.) These three 

references, without more, fail to set forth that claim before this Court. See, e.g., U.S. v. 

Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (“An appellant‟s brief must contain his or 

her argument, which must incorporate „appellant‟s contentions and the reasons for them, 

with citations to the authorities and parts of the record on which the appellant relies. . . .‟”

(quoting FED. R. APP. P. 28(a)(9)(A)); Simmons v. City of Philadelphia, 947 F.2d 1042, 

1066 (3d Cir. 1991) (plurality opinion) (“Under the specificity requirements of Federal 

Rule of Appellate Procedure 28 and Third Circuit Rule 21, a passing reference to an issue 

in a brief will not suffice to bring that issue before this court on appeal.”). Lacking any 

factual or legal support or explanation for Ouadah‟s contention that the BIA‟s decision 

violated his due process rights, we conclude that this argument is waived.