Muhammad Rais v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : DENIED the petition for review. R. Guy Cole , Jr., David W. McKeague, Circuit Judges and Jack Zouhary, U.S. District Judge for the Northern District of Ohio, sitting by designation.

Case: 12-3201

Document: 006111681455

Filed: 05/07/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0456n.06
No. 12-3201

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MUHAMMAD SALMAN RAIS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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May 07, 2013
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: COLE and McKEAGUE, Circuit Judges; ZOUHARY, District Judge.*

PER CURIAM. Muhammad Salman Rais, a citizen of Pakistan, petitions for review of an
order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) decision
denying his application for adjustment of status pursuant to 8 U.S.C. § 1255. This court granted Rais
a stay of removal pending the disposition of this appeal.
Rais was born in Pakistan in 1975. He entered the United States in 2002 to attend school.
Shortly after his arrival, Rais married a United States citizen and applied for adjustment of status to
lawful permanent residency. He was convicted of domestic violence against his wife, also in 2002.
Rais was granted advance parole, allowing him to leave the United States without abandoning his
application for adjustment of status. He was paroled back into this country in 2003. In 2004, his

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The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.

Case: 12-3201

Document: 006111681455

Filed: 05/07/2013

Page: 2

No. 12-3201
Rais v. Holder
application for adjustment of status was denied because Rais and his wife were divorcing. He
married another United States citizen in 2005, and again applied for adjustment of status. That
application was denied in 2009 because of his domestic violence conviction. Simultaneously, Rais
was placed in removal proceedings, in which he also attempted to apply for adjustment of status.
The IJ determined that she lacked jurisdiction to grant Rais adjustment of status under 8 U.S.C.
§ 1255 and applicable implementing regulations, and the BIA affirmed. Meanwhile, Rais had filed
another application for adjustment of status with the United States Citizenship and Immigration
Service (USCIS), which was also denied in 2012.
In his initial brief before this court, Rais argues that the IJ and the BIA erred in determining
that they lacked jurisdiction over his application for adjustment of status. We must uphold the BIA’s
interpretation of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and associated
regulations unless it is arbitrary, capricious, or manifestly contrary to statute. Sad v. INS, 246 F.3d
811, 815 (6th Cir. 2001).
The USCIS has exclusive jurisdiction over applications for adjustment of status by arriving
aliens, except in the case of an alien who is renewing an application that he filed prior to departure
from the United States on advance parole, which may be presented to an IJ in removal proceedings.
See Brito v. Mukasey, 521 F.3d 160, 166-68 (2d Cir. 2008). Here, Rais was not renewing the
application for adjustment of status that he filed prior to leaving the country on advance parole, but
had filed a new application based on his second marriage. Therefore, the IJ lacked jurisdiction to
review the application under the applicable regulations. See Kuppusamy v. Holder, 437 F. App’x
452, 455 (6th Cir. 2011); Brito, 521 F.3d at 166-68; 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1). The
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Case: 12-3201

Document: 006111681455

Filed: 05/07/2013

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No. 12-3201
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BIA’s interpretation of the law in this case is reasonable and must be upheld, and the petition for
review denied.
In a supplemental brief filed by new counsel, Rais seeks to challenge the most recent denial
of his application by the USCIS. We lack jurisdiction to review that decision, as it is not a final
order of removal. See 8 U.S.C. § 1252(a)(1). Moreover, there is no judicial review of discretionary
decisions denying adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i).
Accordingly, the petition for review is denied.

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