2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-23-2003

Beshay v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2300

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1We have jurisdiction of his timely filed petition. 8 U.S.C. § 1252(b)(1)(2000).

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

NO. 03-2300

________________

AWNY BESHAY,

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of 

the Board of Immigration Appeals

(INS No. A75-962-545)

_______________________________________

Submitted Under Third Circuit LAR 34.1(a)

 September 9, 2003

Before: BARRY, BECKER and GREENBERG 

Circuit Judges.

(Filed: September 23, 2003)

_______________________

OPINION

_______________________

BECKER, Circuit Judge.

This is a petition by Awny Beshay, an Egyptian national, for review of an Order of

the Board of Immigrations Appeals (“BIA”).1 Beshay conceded before an Immigration
2

Judge (“IJ”) that he was removable from the United States and applied for asylum, and for

withholding of removal . Beshay also sought protection pursuant to the 1984 United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”), G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N.

Doc. A/39/51 (1984). Alternatively, Beshay requested permission to depart the United

States voluntarily in the event that his other applications were denied. On October 27,

1999, the IJ denied the applications for asylum, withholding of removal, and protection

pursuant to the CAT. However, the IJ granted Beshay partial relief in the form of voluntary

departure until December 3, 1999, and further imposed a condition that he post bond of

$5,000 within five days. Beshay did not post the bond.

Beshay timely appealed to the BIA from the October 27, 1999 decision, and on

December 9, 2002, the BIA dismissed the appeal. The BIA ordered Mr. Beshay removed

from the United States if he did not depart voluntarily within 30 days. Beshay did not

depart within that 30-day period, and did not then petition for review of the BIA dismissal

of his appeal. However, on January 30, 2003, Beshay filed with the BIA a motion to reopen

his proceedings for the purpose of applying for adjustment of status to that of a lawful

permanent resident pursuant to Section 245 of the Immigration and Nationality Act

(“INA”), 8 U.S. C. § 1255 (2000). (Beshay had married a United States citizen in Ventnor,

New Jersey on November 3, 2002).

The BIA denied the motion to reopen on April 17, 2003. On April 28, 2003, Beshay

filed with the BIA a motion for reconsideration of that April 17, 2003 decision, and on May
3

2, 2003, he petitioned this Court for review of the April 17, 2003 decision. On June 4,

2003, the BIA denied the motion to reconsider. Beshay has not filed any petition for

review of the June 4, 2003 decision.

The first question presented by Beshay is whether the BIA erroneously ruled that he

was not eligible to adjust his status to legal permanent resident pursuant to § 240B(d) of the

INA. With respect to this question, Beshay makes a convoluted argument. He asserts that

because he did not post the bond amount within five days as required by law, the IJ’s order

for voluntary departure was vacated so that § 240B(d) does not apply and it cannot prohibit

Beshay from adjusting his status to legal permanent resident status. We review for abuse of

discretion and find none.

Section 240B(d) provides:

If an alien is permitted to depart voluntarily under this section and fails

voluntarily to depart the United States within the time period specified, the

alien shall . . . be ineligible for a period of 10 years for any further relief

under this section and sections 1229b, 1255, 1258, and 1259 of this title.

8 U.S.C. § 1229(d)(2000). The plain meaning of § 240B(d) is that a person is ineligible for

adjustment of status if he does not leave the United States by the date specified in a

voluntary departure order. 8 U.S.C. § 1229(d)(2000). The statute does not make the

posting of a voluntary departure bond the trigger of that bar to adjustment. Nor does 8

C.F.R. § 1240.26(c)(3)(2003) mention § 240B(d)’s eligibility bar – rather, §

1240.26(c)(3) merely provides that if a voluntary departure bond “is not posted within 5

business days, the voluntary departure order shall vacate automatically and the alternate
4

order of removal will take effect on the following day.” 8 C.F.R. 1240.26(c)(3). We

cannot write into § 240B(d) a limitation upon the adjustment eligibility bar that Congress

did not see fit to enact.

Beshay also alleges that the BIA abused its discretion in denying his motion to

reopen for adjustment of status as a result of his marriage to a United States citizen. 

However, Beshay did not petition for review of the BIA’s denial of his motion to

reconsider. We therefore do not possess jurisdiction to review that decision. See Stone v.

INS, 514 U.S. 386, 401-02 (1995) and Desta v. Ashcroft, 329 F.3d 1179, 1183 (10th Cir.

2003).

The petition for review will be denied.
5

TO THE CLERK:

Please file the foregoing opinion.

/s/ Edward R. Becker 

Circuit Judge