RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0185p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ALI JABER,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General,

Respondent.

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No. 05-3882

On Petition for Review of a Decision

of the Board of Immigration Appeals.

No. A43 841 322.

Submitted: January 25, 2007

Decided and Filed: May 22, 2007 

Before: SILER, MOORE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Nabih H. Ayad, NABIH H. AYAD ASSOCIATES, Dearborn Heights, Michigan, for

Petitioner. Derri T. Thomas, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for

Respondent.

_________________

OPINION _________________

ROGERS, Circuit Judge. This appeal concerns two final Board of Immigration Appeals

determinations that impact Ali Jaber’s right to remain in the United States. The first determination

involves the BIA’s initial decision on Jaber’s removal from the United States, while the second final

determination concerns the BIA’s subsequent decision not to reopen its initial decision on removal.

In his habeas petition, Jaber petitioned the district court to review the BIA’s final determination to

remove him and, arguably, the IJ’s decision not to reopen. The district court, pursuant to the REAL

ID Act, converted Jaber’s habeas petition into a petition for review only of the original BIA final

determination on removal. On appeal, however, Jaber challenges only the BIA’s final determination

not to reopen, a final decision for which he never filed a petition for review and a decision that

remains outside of the scope of the district court’s limited transfer of the case to this court. Because

Jaber has not filed a petition for review of the BIA’s final determination on whether to reopen and

because the district court did not transfer Jaber’s challenge to the BIA’s final determination on

whether to reopen, we cannot review Jaber’s arguments as to the merits of the BIA’s most recent

decision, and we deny Jaber’s petition for review.

1
No. 05-3882 Jaber v. Gonzales Page 2

1

The January 25, 1995, correspondence appears to reflect the INS’s rejection of Jaber’s Petition to Remove the

Conditions on Residence (Form I-751) although the subject of the correspondence reads: “Notice of Denial of

Application for Waiver of Requirement to File Joint Petition for Removal of Conditions (Form I-752).” There is no copy

of a Form I-752 in the record, but the INS letter states, “The record reflects that you filed an Application for Waiver of

Requirement to File Joint Petition for Removal of Conditions (Form I-752) on September 28, 1994.” While it is not clear

from the record what form the INS referred to, the parties do not contest that such relief was properly sought. See JA

99. Jaber does not argue that the INS failed to deny his Form I-751 petition. 

2

Jaber did not raise the hardship issue in his Form I-751 and it is unclear at what point Jaber raised this issue.

 This case has a long and convoluted history. Jaber, a native of Lebanon, married Danielle

Darwish, an American citizen, in October 1992. On June 12, 1993, Jaber entered the United States

on an immigrant visa as the spouse of a United States citizen, as a conditional permanent resident.

On August 17, 1993, however, Darwish filed for annulment of the marriage alleging, among other

things, that Jaber married her in order to obtain permanent residence status in the United States. The

Wayne County Circuit Court entered a default judgment of annulment on January 28, 1994.

On September 2, 1994, the Immigration and Naturalization Service served Jaber with notice

that it intended to terminate his conditional permanent resident status because of the annulment of

his marriage. Jaber promptly responded by filing a Form I-751 Petition to Remove the Conditions

on Residence in which he requested a waiver of the requirement that he and his wife file a joint

petition for permanent residence. In his Form I-751 petition, Jaber argued that his “conditional

residence is based on [his] marriage to a U.S. citizen or permanent resident” and that he “entered

into the marriage in good faith, but the marriage was terminated through divorce/annulment.” On

October 4, the INS terminated Jaber’s conditional permanent resident status and informed him that

he could request review of that determination during deportation proceedings. Also on October 4,

the INS issued an Order to Show Cause and Notice of Hearing charging that Jaber was subject to

deportation, and on November 8, the Wayne County Circuit Court denied Jaber’s motion to set aside

the default judgment of annulment. 

On January 25, 1995, the INS informed Jaber that it reviewed affidavits from friends and

relatives and found that Jaber “failed to demonstrate that [he] married in good faith.”1

 The INS also

informed Jaber that it reviewed a police report of an alleged assault and concluded that Jaber

“failed to demonstrate that . . . deportation from the United States would result in an extreme

hardship.”2

 The INS, therefore, determined that Jaber had not met the requirements of either of the

two relevant bases for a waiver under 8 U.S.C. § 1186a(c)(4): he failed to demonstrate that extreme

hardship would result if he were removed, § 1186a(c)(4)(A); and he failed to demonstrate that he

married Darwish in good faith and was not at fault in failing to file his Form I-751 jointly,

§ 1186a(c)(4)(B). (A third basis, not applicable here, is that the alien “was battered by or was the

subject of extreme cruelty perpetrated by his or her spouse.” 8 U.S.C. § 1186a(c)(4)(C).) 

On November 17, 1995, Jaber married another U.S. citizen, Brandy Kay Parr, who filed a

Petition for Alien Relative (Form I-130) on December 28, 1995, seeking to allow Jaber to apply for

a visa. 

On April 7, 1998, an immigration judge held the deportation hearing that was noticed on

October 4, and decided Jaber’s application for voluntary departure and his application for a waiver

of the joint petition requirement. The IJ found that, although Jaber entered into his marriage in good

faith, Jaber was not entitled to a waiver because he did not show that he would also face a hardship

if he returned to Lebanon. The IJ accordingly denied Jaber’s application for a waiver of the joint

petition requirement. 
No. 05-3882 Jaber v. Gonzales Page 3

On April 8, the INS filed a motion to reconsider the IJ’s decision that Jaber needed to show

both a good faith marriage and hardship if returned to Lebanon, and argued that a good-faith

marriage was sufficient for relief even without a hardship showing. Accepting that Jaber was not

required to show hardship if the marriage was in good faith, the INS argued—contrary to the IJ’s

determination—that Jaber failed to demonstrate that he entered into his marriage with Darwish in

good faith. The INS therefore requested that the IJ reconsider his decision on the latter point. The

IJ denied the motion to reconsider, although still finding that Jaber had married Darwish in good

faith. 

The INS itself filed a notice of appeal to the BIA in which the INS argued that the IJ erred

by concluding that Jaber had entered into his marriage with Darwish in good faith. Jaber did not

appeal the IJ’s decision, apparently in reliance on the fact that the INS, in its appeal, itself

challenged the IJ’s decision that Jaber needed to prove both a good faith marriage and extreme

hardship. The INS, however, withdrew its appeal on July 30, 1998, leaving no notice of appeal

before the BIA. On October 6, 1998, the BIA issued an order returning the record to the IJ. Two

days later, on October 8, 1998, Jaber’s counsel, David Wenger, filed a Motion to Accept Untimely

Appeal in which he argued that Jaber did not file a notice of appeal because the INS had done so and

“a decision of the IJ in this case will be final even when it is clearly in error and should not be

allowed to stand.” (There is no copy of an appeal in the record.) The BIA denied the Motion to

Accept Untimely Appeal on July 5, 2000.

On December 2, 1998, while Jaber’s Motion to Accept Untimely Appeal to the BIA was

pending, Jaber filed a grievance against Wenger for failing to file a timely appeal from the IJ’s

decision. On June 1, 1999, the State of Michigan’s Attorney Grievance Commission formally

admonished Wenger for violating the Michigan Rules of Professional Conduct, concluding that he

had “failed to ensure that the immigration forms filed on behalf of Mr. [Jaber] were accurate,

complete, and timely filed.” Jaber did not seek new counsel, however. According to Jaber’s

affidavit filed with the Attorney Grievance Commission, Wenger convinced him that “if I filed

anything it would hurt my case and prevent me from getting my ‘green card’” and reassured Jaber

that his immigration proceedings would work out favorably but did not make Jaber aware of the

status of those proceedings. 

On January 30, 2003, the INS approved Parr’s Form I-130 application on behalf of Jaber,

granting Jaber the opportunity to apply for lawful permanent resident status. Nevertheless, in June

2004, Jaber received a letter from the INS requesting that he appear on July 19, 2004, to be removed

from the United States. Jaber and his brother-in-law met with Wenger, and Wenger told Jaber that

“the Deportation people don’t know what they are talking about and that he will again take care of

everything.” Jaber then decided to retain new counsel. 

On August 20, 2004, through his new counsel, Jaber filed a motion to reopen the April 7,

1998, IJ decision on the basis of the ineffective assistance of his prior counsel. The IJ denied the

motion as untimely on October 14, 2004. The IJ reasoned that the motion to reopen was untimely

because the IJ’s order became final when the government withdrew the only notice of appeal in the

case. Jaber filed a motion to reconsider, which the IJ denied on November 22, 2004. On March 24,

2005, Jaber filed a motion with the BIA to accept his untimely appeal of the denial of the motion

to reopen. (The record does not contain an official appeal. There is just a motion with a one-page

attachment describing how the IJ erred.)

On April 12, 2005, while Jaber’s appeal to the BIA from the IJ’s decision not to reopen was

pending, he filed a petition for a writ of habeas corpus in federal district court. In his habeas

petition, Jaber alleged that his immigration proceedings violated his substantive due process and

equal protection rights. He did not, however, specify which decision he was seeking the court to

review. On the one hand, the habeas petition argued that “[b]y failing to reopen the case, [the INS
No. 05-3882 Jaber v. Gonzales Page 4

3

We have stated in the past that the statutory time limit for petitioning to review a removal reopening denial

is “both mandatory and jurisdictional.” Prekaj v. INS, 384 F.3d 265, 267 (6th Cir. 2004) (quoting Martinez-Serrano v.

INS, 94 F.3d 1256, 1258 (9th Cir. 1996)). We need not decide in this case whether the petition requirement in this case

is “jurisdictional” in the sense that it cannot be waived by the government, or in the sense that the government may be

equitably prevented from raising it. Three recent Supreme Court decisions instruct us to distinguish carefully between

subject-matter jurisdiction and other limits on a court’s authority, in the context of determining whether such limits may

be waived or forfeited by a party. Cobb v. Contract Transport., Inc., 452 F.3d 543, 550 (6th Cir. 2006) (referring to

Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1242-45 (2006), Eberhart v. United States, 546 U.S. 12 (2005),

and Kontrick v. Ryan, 540 U.S. 443, 453-54 (2004)). Assuming that 8 U.S.C. § 1252(b)(1)’s petition requirement is nonjurisdictional for some purposes, it is still the law, and Jaber offers no reason why § 1252(b)(1)’s requirement of a

petition for review (or a statutorily converted equivalent) should not apply in this case. A non-jurisdictional rule is still

a rule, and the government in this case, unlike litigants in recent Supreme Court cases, properly raised the “claim

processing rule.” See Eberhart, 546 U.S. 12; Kontrick, 540 U.S. 443.

is] violating federal law,” suggesting that Jaber was challenging the IJ’s decision not to reopen the

case. On the other hand, Jaber explained that he had an appeal before the BIA on whether to reopen

the case, suggesting that he was, in fact, only challenging the BIA’s final decision on removal. On

April 27, the Government filed a response, treating Jaber’s habeas petition as a petition for review

of the BIA’s final decision on removal. Jaber filed a traverse on May 4 in which he laid out three

errors in the IJ’s denial of Jaber’s motion to reopen, suggesting that the habeas petition challenged

the denial of the motion to reopen. 

On June 30, 2005, the district court granted the Government’s motion to transfer the case to

this court, concluding that Jaber was challenging a final administrative order of deportation (the only

final order from the BIA at the time that Jaber filed his habeas petition). The court reasoned that the

habeas petition was filed to “challenge[ ] a final administrative order of deportation,” which the INS

issued in 2000. The district court also concluded that the REAL ID Act of 2005, Pub. L. No. 109-

13, Div. B, § 106, 119 Stat. 231, 311 (2005), required it to transfer any such case to the appropriate

circuit court of appeals. 

Later, on August 18, 2005, the BIA rendered its decision on Jaber’s appeal of the IJ’s 2004

denial of his motion to reopen. The BIA accepted Jaber’s appeal as timely filed, concluding that the

IJ had mailed his decision to Jaber’s previous counsel, not his current counsel, and that this excused

Jaber’s late filing of that appeal. However, the BIA concluded that the IJ correctly denied Jaber’s

motion to reopen as untimely, stating that “respondent failed to adequately explain why he waited

so long to file a motion to reopen claiming ineffective assistance of counsel.”

There are three ways to interpret Jaber’s April 12, 2005, habeas petition. First, the habeas

petition could be seen, as the INS and district court viewed it, as a challenge to the October 6, 1998,

BIA final order on removal. On appeal, however, Jaber, does not challenge the original BIA final

order, and we therefore do not review the merits of that decision. Second, Jaber’s habeas petition

could be seen as a petition for review of the August 20, 2004, IJ denial of the motion to reopen.

Because the BIA was in the process of reviewing that IJ decision, this court does not have

jurisdiction to review the IJ decision independently. Prekaj v. INS, 384 F.3d 265, 267 (6th Cir.

2004). Third, the habeas petition could be seen as a petition for review of the as-yet-unentered

August 18, 2005, BIA decision denying his appeal of the IJ’s denial of the motion to reopen. As

discussed below, this court does not have jurisdiction to hear Jaber’s petition to the extent that it can

be construed as appealing the August 18, 2005, BIA decision.3

 With respect to the final BIA

decision of the motion to reopen, Jaber has not filed a petition for review, and the REAL ID Act

does not turn a premature habeas petition into such a petition for review. 

This court may not hear Jaber’s petition for review of the August 18, 2005, BIA decision

denying his appeal of the IJ’s denial of his motion to reopen and reconsider because the district
No. 05-3882 Jaber v. Gonzales Page 5

court’s transfer of the case did not convert Jaber’s habeas petition into a petition for review of the

BIA’s decision not to reopen. Section 106(c) of the REAL ID Act provides:

If an alien’s case, brought under section 2241 of title 28, United States Code

[governing habeas petitions], and challenging a final administrative order of removal,

deportation, or exclusion, is pending in a district court on the date of the enactment

of this division [May 11, 2005], then the district court shall transfer the case (or part

of the case that challenges the order of removal, deportation, or exclusion) to the

court of appeals for the circuit in which a petition for review could have been

properly filed. . . The court of appeals shall treat the transferred case as if it had been

filed pursuant to a petition for review under such section 242, except that subsection

(b)(1) of such section [subsec. (b)(1) of this section] shall not apply.

8 U.S.C. § 1252(a)(5), as added by § 106(c) of the REAL ID Act, Pub. L. 109-13. The statute

instructs us to treat the transferred case as if it were a petition for review. The question before us,

then, is: had Jaber filed the case at hand as a petition for review, would we expand the petition to

cover the later BIA decision denying his motion to reopen?

In this case, the district court correctly looked to the only final administrative order at the

time that it transferred this case, specifically the earlier BIA decision affirming the IJ’s decision on

removal. The transfer of the case converted Jaber’s habeas petition into a petition for review of this,

and only this, final order because there was no second BIA final administrative order for the transfer

to convert into a petition for review. The district court’s transfer, therefore, did not convert Jaber’s

habeas petition into a petition for review of the BIA decision on whether to reopen.

Our conclusion is supported by the great weight of relevant authority. Under 8 U.S.C.

§ 1252(b)(1), a party must file a petition for review with the court of appeals within 30 days. In a

recent unpublished opinion, but relying on binding precedent, we made clear that a petition for

review does not cover a later BIA decision on a separate motion:

This court does not have jurisdiction to review El Harake’s claims of ineffective

assistance of counsel because El Harake failed to file a petition for review of the

BIA’s decision denying his motion to reconsider. Under 8 U.S.C. § 1252(b)(1), a

petition for review of a removal order must be filed with the court of appeals within

30 days. Here, El Harake failed to file a petition for review of the BIA’s decision

denying his motion to reconsider. Therefore, this court does not have jurisdiction to

review that decision. See, e.g., Prekaj v. INS, 384 F.3d 265, 267-68 (6th Cir. 2004);

see also Stone v. INS, 514 U.S. 386, 394-95, 403 (1995) (noting that an earlier

version of 8 U.S.C. § 1252(b)(6), which required consolidation of review of an order

under 8 U.S.C. § 1252 with review of a motion to reconsider, contemplates the filing

of two petitions for review where a motion to reconsider leads to a second BIA

decision).

El Harake v. Gonzales, No. 05-3993, 2006 WL 3717564, at *4 (6th Cir. Dec. 18, 2006); see also

Bal v. Gonzales, No. 06-3179, 2006 WL 3539297, at *2 (6th Cir. Dec. 7, 2006) (“[T]he petition for

review filed on February 8, 2006, cannot provide jurisdiction to review the BIA’s summary

affirmance of June 9, 2003, and the court must limit its review to the BIA’s January 11, 2006, denial

of Bal’s motion to reconsider.”); Sene v. Gonzales, 180 Fed. App’x 551, 556 (6th Cir. 2006)

(similar). As we stated in another unpublished opinion, a party who seeks reopening or

reconsideration must file separate petitions for review within 30 days of each final order. Qeraxhiu

v. Gonzales, No. 05-4051, 2006 WL 3314542, at *2 (6th Cir. Nov. 15, 2006); see also Musaj v.

Gonzales, No. 05-4162, 2007 WL 419639, at *3-4 (6th Cir. Feb. 8, 2007) (“Petitioners did not file

petitions for review of those decisions before the applicable deadlines. Therefore, this court does

not have jurisdiction to review those decisions.”). As discussed earlier, Jaber sought BIA review
No. 05-3882 Jaber v. Gonzales Page 6

of the IJ’s denial of his motions to reopen, but the BIA did not issue its decision until after Jaber

filed his habeas petition in the district court and after the district court transferred the case to this

court. Jaber also did not later file a petition for review of the BIA’s denial of his appeal of the IJ’s

rejection of his motion to reopen.

We also reject Jaber’s argument, relying on the Supreme Court’s holding in INS v. St. Cyr, 533 U.S. 289 (2001), that this court has habeas jurisdiction over his case. The REAL ID Act of 2005

clearly eliminated a habeas petition as a means for judicial review of a removal order, abrogating

any holding in St. Cyr to the contrary. 

Because there is no statutory basis for this court to hear Jaber’s petition for review of the

agency’s refusal to reopen, we dismiss his petition.