Argued December 6, 2013
Petition to Review an Order of the Board of Immigration Appeals. Nos. A073-578-087, A070-908-828.
For Pravin Baldevbhai Patel, Jyotsnaben Patel, Petitioners: Frank B. Lindner, Lindner & Lindner, Yardley, PA.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Francis W. Fraser I, Oil, Daniel Shieh, Department of Justice, Washington, DC.
Before KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge.[*]
Rovner, Circuit Judge.
Jyotsnaben and Pravin Patel petition for review of a denial by the Board of Immigration Appeals of their motion to reopen their removal proceedings. The Patels moved to reopen more than nine years after the Board had dismissed their earlier appeal of an immigration judge's denial of their applications for asylum and other relief from removal. Because their motion to reopen was untimely, we deny the petition.
Jyotsnaben Patel was admitted to the United States in December 1992 as a nonimmigrant visitor; her husband, Pravin Patel, entered nearly six months later but was neither admitted nor paroled. They applied for asylum and both were charged with removability: Mrs. Patel because she had overstayed her visa, see 8 U.S.C. § 1227(a)(1)(B), and Mr. Patel because he had entered the country illegally, see 8 U.S.C. § 1182(a)(6)(A)(I). Their cases were consolidated, and the Patels testified before an immigration judge in support of their applications for asylum, but the judge found their allegations not credible, denied their applications, and granted them voluntary departure by the end of September 2002. The Patels failed to comply with the order for voluntary departure; their failure rendered them inadmissible for ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii); Dada v. Mukasey, 554 U.S. 1, 12, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008); Hadayat v. Gonzales, 458 F.3d 659, 664 (7th Cir. 2006). The Patels appealed to the Board of Immigration Appeals, but they filed no brief. With no brief on file, the Board summarily dismissed their appeal in March 2004 and ordered the Patels to leave the United States within thirty days.
The Patels did not comply with the Board's order to leave the country. Still in the United States seven years later, in July 2011 they filed an I-246 application to stay their removal. That application sought from the government a discretionary stay of removal for humanitarian reasons. See 8 C.F.R. § § 241.6 and 212.5. Immigration and Customs Enforcement granted their application in August 2012, permitting the Patels to remain in the country for one more year so that they could apply for adjustment of status or prepare to leave the United States.
Instead of seeking to adjust status (no application is in the record), the Patels moved the Board to reopen their removal proceedings in May 2013. Their request came more than nine years after the Board had ordered their removal but within a year of the stay order. The request also reflected a complicated strategy. The Patels sought to reopen the removal proceedings so that they could ask the government to consent to have those proceedings administratively closed. Once closed, the Patels believed, they could seek a provisional waiver of their inadmissibility on the basis of their U.S.-citizen daughter. See 8 C.F.R. § 212.7(e). With the waiver in hand, the Patels could then travel abroad to apply for an immigrant visa to return legally to the United States. See id . § 212.7(e)(3)(vi). The Department of Homeland Security opposed their motion to reopen, asserting that it was filed too late and no exception to the filing deadline applied. Moreover, the Department said, even if the Board reopened the proceedings, the government would not consent to close the proceedings administratively, thus eliminating the Patels' eligibility for a provisional waiver and quest for lawful status.
In its order the next month, the Board denied the Patels' motion to reopen. It explained that the motion was filed after the 90-day period for motions to reopen, see 8 U.S.C. § 1229a(c)(7); 8 ...