2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-2007

Johar v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2223

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 06-2223

________________

JITENDER SINGH JOHAR,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES

On Petition for Review of an Order 

of the Board of Immigration Appeals

(Agency No. A75-363-913)

Immigration Judge: Henry Dogin

Submitted Under Third Circuit LAR 34.1(a)

February 7, 2007

Before: Judges Rendell, Van Antwerpen and Cowen, Circuit Judges.

(Filed February 8, 2007)

_______________________

OPINION

_______________________

PER CURIAM

I.

Jitender Singh Johar, a Sikh and citizen of India, entered the United States in 1995. 

By way of a Notice to Appear issued in January 1998, Johar conceded his removability
2

for having stayed beyond the period authorized and the Immigration Judge denied his

application for asylum and withholding of removal. The Board of Immigration Appeals

(“BIA”) dismissed Johar’s appeal. In 2002, the BIA denied Johar’s motion to reopen the

proceedings. In 2005, the BIA denied Johar’s second motion to reopen as time and

number barred. In February 2006, Johar filed a third motion to reopen, seeking a remand

to the Immigration Judge for adjustment of status based on his approved I-140 petition for

alien worker. The BIA denied the motion as number barred under 8 C.F.R. §

1003.2(c)(2). Johar filed this timely pro se petition for review.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(5). The only issue before us

is the BIA’s February 2006 order denying Johar’s third motion to reopen. See 8 U.S.C. §

1252(b)(1) (requiring a petition for review to be filed within thirty days of the BIA’s

order). We review the BIA’s denial of a motion to reopen for abuse of discretion,

whereby we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary

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

A petitioner is generally limited to filing one motion to reopen. See 8 C.F.R. §

1003.2(c)(2). Johar filed two previous motions to reopen, and thus is numerically barred

from filing another motion unless he satisfies one of the exceptions to the regulation. See

id. Johar’s pending application for adjustment of status does not provide an exception to

the one motion rule. See Bhiski v. Ashcroft, 373 F.3d 363, 371 (3d Cir. 2004)
3

(recognizing that pursuant to In re Velarde-Pacheco, 23 I & N. Dec. 253 (BIA 2002), a

motion to reopen for adjustment of status may not be granted if, inter alia, the motion is

numerically barred). To the extent Johar is seeking to re-litigate his asylum and

withholding of removal claims, he does not provide any evidence of changed

circumstances in India, and thus does not satisfy the exception for a change in

circumstances arising in the country to which deportation has been ordered. See 8 C.F.R.

§ 1003.2(c)(3)(ii). The other exceptions to the numerical bar set forth in the regulations

are clearly not applicable. See 8 C.F.R. § 1003.2(c)(3). 

Accordingly, the BIA did not abuse its discretion in denying the motion to reopen. 

We will therefore deny the petition for review.