Nawab Haq v. Eric Holder, Jr., U. S. Attorn

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Nawab Haq v. Eric Holder, Jr., U. S. Attorn

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Case: 09-60267

Document: 00511179065

Page: 1

Date Filed: 07/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60267 S u m m a r y Calendar July 20, 2010 Lyle W. Cayce Clerk

N A W A B MUNIR UL HAQ, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e t it io n s for Review of Orders of the B o a r d of Immigration Appeals B I A No. A073 419 249

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* N a w a b Munir-Ul Haq ("Haq"), a citizen and native of Pakistan, petitions t h is court for review of the Board of Immigration Appeals' (BIA) order denying h is motion to reconsider or reopen his removal proceedings (the "first motion") a n d the BIA's order denying his motion to reconsider the denial of the first m o t io n (the "second motion"). The BIA found that Haq's first motion was

u n t im e ly and numerically barred and, therefore, denied it. In denying Haq's fir s t motion, the BIA also stated that it would not reopen Haq's removal
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Case: 09-60267

Document: 00511179065 Page: 2 No. 09-60267

Date Filed: 07/20/2010

p r o c e e d in g s sua sponte. The BIA denied Haq's second motion based upon its d e t e r m in a t io n that its original ruling was correct and its determination that sua s p o n te reopening was not appropriate. H a q argues that the BIA erred by denying his first motion. Although Haq a r g u e s that the BIA erred, he raises no challenge in his brief to the BIA's d e t e r m in a t io n that his first motion was untimely and numerically barred. Accordingly, we find that he has abandoned any such challenge. See Soadjede v . Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). D e s p ite the fact that his first motion was untimely and numerically b a r r e d , Haq argues that the BIA should have granted his first motion by using it s sua sponte authority to reopen his removal proceedings. As Haq concedes, we d o not have jurisdiction to review the BIA's refusal to reopen his proceedings sua s p o n te .1 See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004). Accordingly, his petition for review on this basis must be dismissed. W it h respect to the second motion, Haq only argues that the court should r e m a n d this case and order the BIA to rule on the second motion. As the BIA h a s already issued a ruling on that motion, Haq's argument is moot. Haq has n o t raised any other challenge to the BIA's denial of the second motion. Accordingly, Haq has abandoned any such challenge. See Soadjede, 324 F.3d at 833. P E T I T I O N S FOR REVIEW DENIED in part and DISMISSED in part.
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Although Haq concedes our lack of jurisdiction, he nevertheless argues that we may review the BIA's reasons for refusing to exercise its sua sponte authority, citing Cruz v. Att'y Gen., 452 F.3d 240, 250 (3d Cir. 2006) (questioning whether the BIA could, without explanation or reason, depart from an allegedly settled practice of reopening proceedings when an alien could demonstrate that his "conviction was vacated under" In re Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003)). Haq's case is distinguishable from Cruz. Haq alleges that he is not subject to deportation because he is entitled to an adjustment of status. Haq does not allege that his deportation order is invalid in light of a vacated conviction, and Haq has not shown that the BIA has a settled practice of reopening proceedings that challenge adjustment of status decisions. Accordingly, we need not decide whether to adopt the reasoning of Cruz because, in any event, its holding is inapplicable to this case. See Vaso v. Att'y Gen., 264 F. App'x 161, 162 n.1 (3d Cir. 2008) (unpublished) (distinguishing Cruz on a similar basis).

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