Patrick Gelin, et al v. Attorney General United States

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, KRAUSE and ROTH, Circuit Judges. Total Pages: 4.

Case: 15-2965

Document: 003112494032

Page: 1

Date Filed: 12/21/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2965
___________
PATRICK GELIN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073 035 216)
Immigration Judge: Honorable Walter Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: December 21, 2016)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-2965

Document: 003112494032

Page: 2

Date Filed: 12/21/2016

PER CURIAM
Patrick Gelin, proceeding pro se, petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying his motion to reconsider the denial of his motion
to reopen his immigration proceedings. For the reasons that follow, we will dismiss the
petition for review.
Gelin is a native and citizen of Haiti. He entered the United States in 1990
without inspection and adjusted his status to a lawful permanent resident on a conditional
basis in 1998. The conditions on residency were removed in 2002. The Department of
Homeland Security issued a notice to appear in 2013 charging that Gelin was removable
for having been convicted of an aggravated felony. Gelin was convicted in federal court
of healthcare fraud and conspiracy to commit healthcare fraud and sentenced to 72
months in prison.
The Immigration Judge (“IJ”) found Gelin, who proceeded pro se, removable and
determined that he was eligible to seek a waiver under 8 U.S.C. § 1182(h), § 212(h) of
the Immigration and Nationality Act. The IJ advised Gelin that he needed to readjust his
status, which meant that his wife, a United States citizen, had to file a Petition for Alien
Relative on his behalf. At the next hearing, Gelin told the IJ that he and his wife had
divorced, that they were reinstating their marriage, and that his ex-wife had filed a
petition on his behalf. The IJ found that Gelin could not readjust his status in light of the
divorce and ordered his removal.
On December 22, 2014, the BIA dismissed Gelin’s appeal. The BIA rejected
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Gelin’s argument that the IJ should have afforded him a continuance so that a petition
could have been filed. The BIA stated that Gelin had not established any prejudice based
on the denial of a continuance because he had not shown that a petition had been filed.
Gelin filed a motion to reopen and submitted a copy of a notice reflecting that a
Petition for Alien Relative was filed on March 2, 2015, more than two months after the
BIA dismissed his appeal. On May 12, 2015, the BIA denied the motion because Gelin
did not establish prima facie eligibility for adjustment of status with evidence of the bona
fides of a marriage. The BIA noted that the petition was not filed by his ex-wife, but by
someone else.
Gelin then filed a motion to reconsider the denial of his motion to reopen.
Counsel also entered an appearance and filed a motion. In a decision issued July 8, 2015,
the BIA found no basis to reconsider its prior decision because Gelin still had not
established prima facie eligibility for adjustment of status. The BIA stated that Gelin had
submitted a copy of a marriage certificate showing that he had married, but he had not
provided evidence of the bona fides of the marriage. This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Our jurisdiction is limited to
constitutional claims and questions of law because Gelin was convicted of an aggravated
felony. See 8 U.S.C. §§ 1252(a)(2)(C), (D); Desai v. Att’y Gen., 695 F.3d 267, 269 (3d
Cir. 2012). Our jurisdiction is also limited to review of the BIA’s denial of the motion to
reconsider. See Stone v. INS, 514 U.S. 386, 405 (1995) (motion to reconsider did not toll

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Date Filed: 12/21/2016

the time to file a petition for review of a deportation order).1
Gelin has not raised any issues in his brief that are properly before us. To the
extent Gelin contends that the IJ should have afforded him a continuance, as noted above,
our jurisdiction is limited to the BIA’s denial of his motion to reconsider. Gelin primarily
asserts that his counsel failed to properly file another motion to reopen with evidence of
the bona fides of his marriage, and that he is eligible for adjustment of status in light of
affidavits he obtained after the BIA denied his motion to reconsider. These events took
place after the decision at issue and are not before us.2 To the extent Gelin challenges the
July 8, 2015 denial of his motion to reconsider, even if we liberally construe his brief, he
does not adequately present a constitutional claim or question of law for our review.
Finally, we may not entertain Gelin’s request for relief based on the equities of his case.
Accordingly, we will dismiss the petition for review.

1

The Government argues that the petition for review was untimely filed as to the denial of
the motion to reconsider. Because we will dismiss the petition on other grounds, we do
not reach this argument. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549
U.S. 422, 431 (2007).
2
Gelin has attached to his brief a BIA decision issued September 29, 2015 denying
another motion to reopen. It does not appear that Gelin sought judicial review of this
decision.
4