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SBEIH v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW

November 3, 1997

MAHMOUD SBEIH, Petitioner,
v.
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, IMMIGRATION AND NATURALIZATION, BRIAN PERRYMAN, District Director of the INS in Chicago, Illinois, and the UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Petitioner Mahmoud Sbeih is an alien subject to a final order of deportation. He seeks a writ of mandamus in connection with deportation proceedings conducted against him before the Immigration Judge of the Executive Office for Immigration Review (the "Immigration Judge"). For the following reasons, the mandamus petition is dismissed for lack of jurisdiction.

 FACTUAL BACKGROUND

 On February 17, 1996, petitioner married Angela Joma, a United States citizen, who filed an immediate relative visa petition on his behalf. The petition was approved on June 5, 1996. On August 8, 1996, four days before his period of voluntary departure was to expire, petitioner filed a motion to reopen his deportation hearing in order to have his status adjusted to permanent resident based on the approval of his visa petition. Petitioner also requested an extension of his period of voluntary departure from the District Director of the Immigration and Naturalization Service.

 On August 12, 1996, petitioner's period of voluntary departure expired. The District Director denied petitioner's request for an extension or reinstatement of voluntary departure. Subsequently, petitioner supplemented his motion to reopen before the Immigration Judge with a request for reinstatement of voluntary departure. On September 11, 1996, the Immigration Judge granted petitioner a stay of deportation to remain in effect until his motion to reopen was decided. On April 14, 1997, the Immigration Judge issued a written decision in which he denied petitioner's motion to reopen his deportation proceedings to seek a status adjustment.

 If an alien who has been allowed to depart voluntarily and has been warned of the consequences of remaining in the United States after his scheduled date of departure as required by 8 U.S.C. § 1252b(e)(2)(B), "remains in the United States after [his] scheduled date of departure, other than because of exceptional circumstances, [he] shall not be eligible for relief described in paragraph (5) for a period of 5 years after the scheduled date of departure or the date of unlawful reentry, respectively." 8 U.S.C. § 1252b(e)(2)(A). The relief described in paragraph (5) includes an "adjustment or change of status" -- the relief sought from the Immigration Judge by petitioner. The term "exceptional circumstances" means "exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1252b(f)(2). A motion to reopen may be denied for failure to establish a prima facie case for the relief sought. Immigration and Naturalization Service v. Doherty, 502 U.S. 314, 323, 116 L. Ed. 2d 823, 112 S. Ct. 719 (1992); Groza v. Immigration and Naturalization Service, 30 F.3d 814, 818 (7th Cir. 1994).

 As indicated in his written decision, the Immigration Judge found that petitioner did not depart on or before his scheduled departure date and had not obtained an extension of his period of voluntary departure from the District Director. The Immigration Judge also found petitioner had received the warnings required by 8 U.S.C. § 1252b(e)(2)(B). Finally, the Immigration Judge found that petitioner failed to demonstrate the "extraordinary circumstances" necessary to excuse his failure to depart. In so finding, the Immigration Judge relied on In re Shaar, Interim Decision 3290 (BIA 1996), in which the Board of Immigration Appeals held that neither the filing of a motion to reopen nor an Immigration Judge's failure to rule on a pending motion to reopen constituted "exceptional circumstances" under 8 U.S.C. § 1252b(f)(2). Thus, the Immigration Judge determined that 8 U.S.C. §§ 1252b(e)(2)(A) and 1252b(e)(5)(C) rendered petitioner ineligible for an adjustment of status and therefore denied petitioner's motion to reopen.

 Petitioner's counsel was notified of the Immigration Judge's decision on April 21, 1997. The notification was accompanied by a cover letter explaining that the decision would be final unless petitioner filed an appeal to the Board of Immigration Appeals within thirty days of the date of the letter. Petitioner did not appeal.

 Petitioner acknowledges that the Immigration Judge denied his motion to reopen. Petitioner also admits that, at the time his motion to reopen was decided, his period of voluntary departure had expired and he had not obtained an extension or reinstatement of voluntary departure from the District Director. Petitioner does not deny that he received the letter explaining that the decision of the Immigration Judge would be final unless he filed an appeal to the Board of Immigration Appeals. Petitioner also admits that he did not appeal.

 Instead, petitioner argues that: (1) the Immigration Judge could have reinstated his period of involuntary departure; (2) the Immigration Judge failed to consider his request for reinstatement of voluntary departure; and (3) the Immigration Judge's failure to consider his request constituted a denial of his constitutional right to due process. The version of 8 C.F.R. § 3.23 applicable to petitioner *fn1" states, "the Immigration Judge may upon his or her own motion, or upon the motion of the trial attorney or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested in the Board of Immigration Appeals. . . ." 8 C.F.R. § 3.23(b)(1) (1995). The version of 8 C.F.R. § 244.2 applicable to petitioner states:

 
Authority to reinstate or extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is within the sole discretion of the district director, except that an immigration judge or the Board may reinstate voluntary departure in a deportation proceeding that has been reopened for a purpose other than solely making an application for voluntary departure.

 8 C.F.R. § 244.2 (1995). Petitioner argues that since he sought to reopen his deportation proceeding to obtain a status adjustment, not to apply for voluntary departure, the Immigration Judge could have reinstated his voluntary departure under § 244.2 and thereby rendered him eligible for a status adjustment. Petitioner argues that the Immigration Judge found him ineligible for an adjustment of status under 8 U.S.C. §§ 1252b(e)(2)(A) and 1252b(e)(5)(C) and therefore denied his motion to reopen because the Immigration Judge did not believe that he had the authority under § 244.2 to reinstate petitioner's voluntary departure. Although petitioner recognizes a decision to reinstate voluntary departure or to grant or deny a motion to reopen is discretionary, petitioner claims that the Immigration Judge failed to exercise his discretion under § 244.2. Thus, petitioner seeks a writ of ...


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