Abdul Qureshi v. Attorney General United State
677 F. App'x 757
| 3rd Cir. | 2017Background
- Qureshi, a British citizen and former lawful permanent resident admitted in 1989, had two New York sexual-offense convictions (1997 sexual abuse in the third degree; 2008 forcible touching).
- DHS issued a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(A)(ii) for two crimes involving moral turpitude; at his 2012 IJ hearing Qureshi (through counsel) admitted the allegations and conceded removability.
- Qureshi applied for discretionary cancellation of removal; the IJ found him removable, rejected his credibility and hardship claims, and denied cancellation based on the equities.
- On appeal to the BIA, Qureshi sought remand to withdraw counsel’s concessions and argued ineffective assistance of counsel and that his 1997 complaint was facially invalid; the BIA denied remand, affirmed the IJ on cancellation, and later denied a motion to reconsider.
- Qureshi filed two petitions for review to this Court: one of the BIA’s December 11, 2015 order (filed late by paper; emailed earlier), and one of the BIA’s March 14, 2016 denial of reconsideration (timely).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / jurisdiction to review BIA December 11, 2015 order | Qureshi contends his emailed petition to CM/ECF help desk on Jan 11 was timely and should be accepted | Circuit clerk rules require paper filing for case-initiating documents by close of business; email to help desk is not a valid electronic filing | Petition for review of Dec 11 order is untimely; court lacks jurisdiction and dismisses it |
| Motion to remand based on ineffective assistance (Lozada) and invalid criminal complaint | Qureshi argues counsel ineffectively conceded removability and failed to challenge a facially invalid 1997 complaint lacking lack-of-consent allegations | BIA/Judge argue Lozada procedural requirements not met and, substantively, counsel’s alleged errors would not have changed outcome because convictions remain valid absent collateral overturning | Even if timely, BIA did not abuse discretion: ineffective assistance claim fails both procedurally and substantively (no prejudice) |
| Reviewability of denial of discretionary cancellation of removal | Qureshi argues IJ/BIA erred in weighing equities and denying cancellation | Government: discretionary denial is committed to agency and statutorily unreviewable | Court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review BIA’s discretionary cancellation denial |
| Motion to reconsider denial | Qureshi asserts BIA erred on Lozada compliance, mischaracterized complaint challenge as collateral attack, and misapplied moral-turpitude analysis | BIA: motion just rehashes prior arguments; additional evidence was available earlier; criminal convictions are final unless overturned; comparative-state analysis appropriate for moral turpitude | BIA did not abuse discretion; petition for review of March 14 order is denied |
Key Cases Cited
- Korytnyuk v. Ashcroft, 396 F.3d 272 (3d Cir. 2005) (motion to remand is functionally like motion to reopen)
- Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) (standard of review for BIA denial of remand)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) (substantial-evidence review of BIA factual findings)
- Fadiga v. Att’y Gen., 488 F.3d 142 (3d Cir. 2007) (standards for proving ineffective assistance prejudice in immigration context)
- Paredes v. Att’y Gen., 528 F.3d 196 (3d Cir. 2008) (convictions treated as final and valid for immigration unless overturned)
- Partyka v. Att’y Gen., 417 F.3d 408 (3d Cir. 2005) (useful comparisons to other states when assessing moral turpitude)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (comparing statutes to assess moral turpitude)
- Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) (standard of review for BIA denial of reconsideration)
- Vakker v. Att’y Gen., 519 F.3d 143 (3d Cir. 2008) (filing deadlines are jurisdictional and cannot be extended)
- Calla-Collado v. Att’y Gen., 663 F.3d 680 (3d Cir. 2011) (a client is bound by counsel’s factual concessions absent egregious circumstances)