Bhinder v. Attorney General of the United States
654 F. App'x 537
| 3rd Cir. | 2016Background
- Naveed Ali Bhinder, a Pakistani national, became a lawful permanent resident in 2003 after marriage to U.S. citizen Nailia Qureshi.
- In 2010 Bhinder pled guilty to money laundering; the conviction was classified as an aggravated felony, triggering DHS removal proceedings and precluding him statutorily from receiving an 8 U.S.C. § 1182(h) waiver because the aggravated felony occurred after admission as an LPR.
- The IJ ordered removal in 2012; the BIA affirmed in 2013. Bhinder sought reopening to apply for a waiver of inadmissibility and adjustment of status; the BIA initially denied, the Third Circuit remanded to reconsider procedural compliance, and the BIA then allowed consideration of the waiver application.
- Bhinder sought a continuance to obtain a medical exam before the merits hearing on whether his wife would suffer "extreme hardship;" the IJ denied the continuance and then denied the waiver for failure to show extreme hardship.
- Bhinder moved to reopen to present a psychologist’s report about his wife’s mental state; the IJ and BIA denied reopening as the evidence was not new or could have been presented earlier. He appealed to the Third Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ failed to evaluate extreme hardship in the aggregate | Bhinder: IJ considered factors individually instead of aggregating them per In re O-J-O- and Matter of Ige | Govt: Claim is a discretionary/evidentiary challenge, not a legal question | Court: No jurisdiction — claim is non-colorable challenge to discretionary weighing of facts |
| Whether denial of continuance violated due process by preventing medical-evaluation evidence | Bhinder: Denial prejudiced ability to present evidence and thus violated due process | Govt: Continuance denial is discretionary; Bhinder cannot show substantial prejudice | Court: No jurisdiction — Bhinder failed to show colorable constitutional claim or substantial prejudice |
| Whether BIA misapplied reopening standards by requiring affidavits or finding psychologist report not "new" | Bhinder: BIA (or IJ) incorrectly required affidavits and misinterpreted § 1229a(c)(7)(B) | Govt: IJ and BIA properly found the psychologist evidence was not new and could have been presented earlier; no affidavit requirement was imposed | Court: No jurisdiction — claim is frivolous/insubstantial; BIA adopted IJ’s factual reasoning |
| Jurisdictional question: whether appellate review is available given aggravated-felon status | Bhinder: Raised legal and constitutional challenges to BIA/IJ actions | Govt: 8 U.S.C. § 1252(a)(2) bars review of discretionary orders for aggravated felons absent colorable legal/constitutional claims | Court: Denies review for lack of jurisdiction because Bhinder’s claims are non-colorable factual/discretionary disputes |
Key Cases Cited
- Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010) (defines "colorable" legal or constitutional challenges sufficient to overcome § 1252 limits)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishes jurisdictional from nonjurisdictional claims; "wholly insubstantial and frivolous" standard)
- Jarbough v. Attorney General, 483 F.3d 184 (3d Cir. 2007) (limits on review where claims challenge discretionary factual determinations)
- Cospito v. Attorney General, 539 F.3d 166 (3d Cir. 2008) (factual disputes over evidence weighting are not colorable legal claims)
- Rachak v. Attorney General, 734 F.3d 214 (3d Cir. 2013) (denial of continuance is discretionary and not reviewable under § 1252)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (discretionary decisions and related constitutional claims often fall outside review)
- Khan v. Attorney General, 448 F.3d 226 (3d Cir. 2006) (due process in deportation requires showing substantial prejudice)
- Emokah v. Mukasey, 523 F.3d 110 (2d Cir. 2008) (challenges to agency weighing of evidence are discretionary and not legal questions)