NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2920

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FAOUZI AMAOUCHE, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

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PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS

Agency No. A095-479-004

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Argued: September 13, 2011

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Before: RENDELL, JORDAN and BARRY, Circuit Judges

(Opinion Filed: October 7, 2011)

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Joseph C. Hohenstein, Esq. (Argued)

Orlow, Kaplan & Hohenstein

620 Chestnut Street

Suite 656

Philadelphia, PA 19106-0000

Counsel for Petitioner
2

Papu Sandhu, Esq. (Argued)

Eric H. Holder, Jr., Esq.

Thomas W. Hussey, Esq. 

Paul F. Stone, Esq.

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

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OPINION

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BARRY, Circuit Judge

Faouzi Amaouche seeks review of a 2005 deportation order of U.S. Immigration 

and Customs Enforcement (“ICE”), even though he was removed pursuant to a new 

deportation order issued in 2010, an order he has not appealed. We note that, in this not 

precedential opinion, we are writing primarily for the parties, who well understand the 

facts of the case. We, nonetheless, will set forth the facts relevant to the issues we see 

before us, anticipating that a non-party reader might wonder at what may appear to be our

rather summary disposition of the case. 

Amaouche, a native and citizen of Algeria, was admitted to the United States on 

May 1, 2001 under the Visa Waiver Program (“VWP”), 8 U.S.C. § 1187, whereby 

qualifying visitors from specific countries may enter the United States without a visa and 

legally remain for 90 days. Algeria was not and is not a specified country under the 

VWP, but Amaouche presented a fraudulently altered French passport upon his entry, and 
3

France was a specified country. An integral part of the VWP is the requirement that 

aliens arriving in the United States sign and submit a waiver forfeiting any right to contest 

removal, other than on the basis of an application for asylum. Id. § 1187(b)(1). 

Amaouche contends that the government has not produced proof of his signed waiver, 

and that the waiver form was available only in English, a language that he did not speak, 

making any signed form invalid as to him. In any event, Amaouche overstayed the 

VWP’s 90-day limit. 

In 2002, Amaouche requested asylum based on a fear of returning to Algeria, and 

was granted an asylum hearing. An immigration judge denied his application for asylum, 

and the Board of Immigration Appeals (“BIA”) affirmed. The denial of asylum is not at 

issue here.

On August 2, 2005, the same day that the BIA affirmed the denial of asylum, a 

deportation order issued based on Amaouche’s violation of the terms of the VWP and 

naming Algeria as the country of removal, but Amaouche was not then removed. He 

subsequently married an American citizen, and on February 24, 2010, filed an application 

with U.S. Citizenship and Immigration Services (“USCIS”) for adjustment of status. 

When he appeared for his adjustment of status interview, he was taken into custody based 

on the August 2, 2005 order, and on that same day USCIS denied the adjustment 

application. 

On June 25, 2010, Amaouche filed a petition for review of the 2005 deportation
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order in this Court, claiming that he had not received notice of the order until May 27, 

2010, the date of his arrest. We denied Amaouche’s petition for a stay of removal, as 

well as his motion to reconsider. On October 14, 2010, ICE issued a new deportation 

order based on the fact that Amaouche stayed beyond the 90-day limit permitted under the 

VWP, and he was removed on October 25, 2010. 

It should be apparent from even this brief recitation that Amaouche fraudulently 

entered this country and that he has, at every turn, invoked its procedures in his effort to 

remain here, while complaining of what the government should have done better when it 

admitted him from a country from which he could not have legally entered in the first 

place and when it returned him there. His various complaints prompt the three issues we 

see before us: 

First, was the 2005 order, the only order challenged here, a final order of removal? 

It is, of course, settled law that we have jurisdiction to hear appeals only from final orders 

of removal, see 8 U.S.C. § 1252(a)(1). Second, was Amaouche’s appeal from the 2005 

order timely? Although the government concedes timeliness, suggesting that the time 

limitation can be tolled because the record does not establish that Amaouche received 

notice of the 2005 order until 2010, we have held that jurisdictional time limitations 

cannot be equitably tolled, Borges v. Gonzales, 402 F.3d 398, 405 (3d Cir. 2005), and that 

the 30-day limitation for filing a petition for review of a final order of removal is a 

jurisdictional limitation, Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir. 2008). And, 
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third, even if the appeal is from a final order and is timely, is Amaouche’s petition moot? 

In other words, does the new deportation order of October 14, 2010 and Amaouche’s 

subsequent, unchallenged removal under that order render review of the 2005 order 

moot? 

We need not and, thus, will not, discuss the first two jurisdictional issues, but, 

rather, will assume the finality and timeliness of the order under review. As the Second 

Circuit put it: 

We need not address the jurisdictional issue. Our assumption of jurisdiction 

to consider first the merits is not barred where the jurisdictional constraints 

are imposed by statute, not the Constitution, and where the jurisdictional 

issues are complex and the substance of the claim is, as here, plainly 

without merit.

Ivanishvili v. U.S. Dept. of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006) (citing MarquezAlmanzar v. INS, 418 F.3d 210, 216 n.7 (2d Cir. 2005)). 

Because, however, mootness is a jurisdictional constraint imposed by the 

Constitution, we cannot dispose of it so easily. In re Surrick, 338 F.3d 224, 229 (3d Cir. 

2003). Rather, we must address mootness, and do so, albeit briefly. The case is moot for 

a very simple reason: Amaouche was removed pursuant to the order of deportation filed 

on October 14, 2010 and not pursuant to the August 2, 2005 order that is the subject of 

this appeal. Accordingly, even if Amaouche’s challenge to the 2005 order was 

meritorious, it could not affect the 2010 order, which he has not appealed and, because 
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more than thirty days have elapsed since the order issued, he is too late to do so now.1 

Stated somewhat differently, the 2010 order necessarily vacated the 2005 order and no 

ruling we make on the 2005 order will affect the 2010 order.2 See Thomas v. Attorney 

General, 625 F.3d 134, 140-41 (3d Cir. 2010). 

Amaouche, we note, will not be prejudiced by our dismissal of this appeal as moot 

for the reasons we have discussed and because the arguments he has made as to the 

waiver form are foreclosed by Bradley v. Attorney General, 603 F.3d 235 (3d Cir. 2010). 

In Bradley, virtually identical arguments were raised and we found no prejudice because 

“the consequence he now faces – summary removal – is the same consequence he would 

have faced had he known of the waiver and refused to sign.” Id. at 240.3 

The petition for review will be dismissed for lack of jurisdiction. 

 

1

 Amaouche urges that the government should not be permitted to cure a previously 

deficient attempt at a removal order by filing and serving a later order. That argument 

could have been made by appealing the later issue, but Amaouche did not do so. 

2

 By separate order we will grant the government’s motion, opposed by Amaouche, to 

supplement the record with six documents relevant to Amaouche’s removal but postdating his petition for review. See Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir. 

1992) (en banc) (“[B]ecause mootness is a jurisdictional issue, we may receive facts 

relevant to that issue; otherwise there would be no way to find out if an appeal has 

become moot.”). 

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 Given the foregoing, it should go without saying that even were this appeal not moot, 

Amaouche would lose, and resoundingly lose, on the merits.