08-3273-Ag

Sohail v. Holder

BIA

Monsanto, I

A073 053 249

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 23 day of December, two thousand nine. rd

5

6 PRESENT:

7 ROGER J. MINER,

8 JOHN M. WALKER, JR.,

9 REENA RAGGI,

10 Circuit Judges.

11 _______________________________________

12

13 MOHAMMAD ABAD SOHAIL,

14 Petitioner, 

15

16 v. 08-3273-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Usman B. Ahmad, Long Island City,

24 New York.

25
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; Cindy S. Ferrier, Senior

3 Litigation Counsel; Joseph A.

4 O’Connell, Trial Attorney; Office of

5 Immigration Litigation, United

6 States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED, that the petition for review

12 is DISMISSED. 

13 Mohammad Abad Sohail, a native and citizen of Pakistan,

14 seeks review of a June 3, 2008 order of the BIA affirming

15 the September 28, 2006 decision of Immigration Judge (“IJ”)

16 Philip J. Montante, Jr., which denied Sohail’s application

17 for voluntary departure. In re Mohammad Abad Sohail, No.

18 A073 053 249 (B.I.A. June 3, 2008), aff’g No. A073 053 249

19 (Immig. Ct. Buffalo, NY Sept. 28, 2006). We assume the

20 parties’ familiarity with the underlying facts and

21 procedural history in this case. 

22 When the BIA issues an opinion that fully adopts the

23 IJ’s decision, this Court reviews the IJ’s decision. Chun

24 Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005). We

25 review factual findings under the substantial evidence

26 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.
3

1 Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

2 Questions of law and application of law to undisputed fact

3 are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d

4 99, 110 (2d Cir. 2008). This Court does not have

5 jurisdiction to review the denial of a request for voluntary

6 departure, Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97

7 (2d Cir. 2007) (citing 8 U.S.C. §§ 1229c(f),

8 1252(a)(2)(B)(i)), however, we do retain jurisdiction to

9 review any constitutional claims or questions of law, see 8

10 U.S.C. § 1252(a)(2)(D).

11 Sohail presents two issues over which this Court has

12 jurisdiction: (1) whether the agency applied the appropriate

13 standard in adjudicating Sohail’s request for voluntary

14 departure, and (2) whether Sohail’s removal proceedings

15 comported with due process in regard to Sohail’s opportunity

16 to present evidence relating to his application for

17 cancellation of removal. 

18 From a review of the record in this case, it is plain

19 that the IJ properly considered Sohail’s request for

20 voluntary departure under 8 U.S.C. § 1229c(b), and not under

21 8 U.S.C. § 1229c(a) as Sohail contends. An alien may apply

22 for voluntary departure pursuant to § 1229c(a) if he makes
4

1 his application “prior to or at the master calendar hearing

2 at which the case is initially calendared for a merits

3 hearing.” 8 C.F.R. § 1240.26(b)(1)(i)(A) (emphasis added);

4 cf. Matter of Cordova, 22 I. & N. Dec. 966, 968 (B.I.A.

5 1999) (holding that a master calendar hearing is a

6 “preliminary stage of the proceedings at which, even though

7 little or no testimony is taken, the Immigration Judge has

8 great flexibility to identify issues, make preliminary

9 determinations of possible eligibility for relief, resolve

10 uncontested matters, and schedule further hearings”). 

11 Sohail failed to make his application for voluntary

12 departure at the initial master calendar hearing on August

13 27, 2004 and at a subsequent hearing on September 7, 2005. 

14 Sohail first made his application midway through the hearing

15 on September 28, 2006 – more than two years after his

16 initial master calendar hearing – and only after he decided

17 to withdraw his application for cancellation of removal. As

18 Sohail’s application was not timely pursuant to § 1229c(a),

19 the IJ properly considered his application to be governed by

20 § 1229c(b). 

21 We additionally conclude that Sohail was not precluded

22 from either presenting evidence in support of, or proceeding
5

1 with, his application for cancellation of removal. See 8

2 U.S.C. § 1229a(b)(4)(B). The record reflects that Sohail

3 withdrew his application knowingly, intelligently, and

4 voluntarily, after a discussion with his attorney, after his

5 wife and son would not appear as witnesses on his behalf,

6 and after the Government made its allegation that Sohail had

7 entered into a fraudulent marriage with his current wife. 

8 For the foregoing reasons, the petition for review is

9 DISMISSED. As we have completed our review, any stay of

10 removal that the Court previously granted in this petition

11 is VACATED, and any pending motion for a stay of removal in

12 this petition is DISMISSED as moot. Any pending request for

13 oral argument in this petition is DENIED in accordance with

14 Federal Rule of Appellate Procedure 34(a)(2), and Second

15 Circuit Local Rule 34(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18

19

20 By:___________________________