Elaine Carter v. Attorney General of the United States

IMG-005 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3305
ELAINE CARTER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A44-135-671)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 21, 2009
Before: BARRY, STAPLETON AND NYGAARD, Circuit Judges
(Opinion filed: October 22, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Elaine Carter is a native and citizen of Jamaica who seeks review of the
Board of Immigration Appeals’s (“BIA”) denial of her motion to reopen her removal
proceedings. For the following reasons, we will deny the petition for review.

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I.
The petitioner entered the United States as a conditional permanent resident in
September 1993 based on her 1991 marriage to Yaqub Muhammed. In September 1995,
Muhammed filed a I-751 petition to remove the conditions to his wife’s residency. The
Department of Homeland Security (“DHS”) (then, the Immigration and Naturalization
Service) denied the petition in 1997 after determining that the marriage was fraudulent.
The DHS then issued the petitioner a notice to appear (“NTA”), charging her with
removability due to the termination of her conditional permanent residency status. See 8
U.S.C. § 1227(a)(1)(D)(i). In July 1998, an Immigration Judge (“IJ”) found the petitioner
removable as charged and determined that the INS properly denied the I-751 petition.
The BIA dismissed the appeal in October 2000.
The petitioner divorced Muhammed and in March 2001 married Herman Carter.
The DHS then erroneously granted the petitioner conditional permanent residency based
on her marriage to Carter. Mr. Carter filed an I-130 petition for an alien relative, the
couple jointly filed an I-751 petition to remove the conditions on the petitioner’s
residency, and the petitioner filed an I-485 petition to register as a permanent resident or
to adjust her status. In December 2004, the DHS denied the I-751 petition and terminated
the petitioner’s status because the Attorney General had previously found that she had
engaged in marriage fraud. See 8 U.S.C. § 1154(c). The petitioner was issued another
NTA, which charged her with removability under 8 U.S.C. § 1227(a)(1)(D)(i). She

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sought review of the denial of the I-751 application, but in July 2005 the IJ found that
removability had been established by clear and convincing evidence. The IJ also found
that the DHS properly terminated the petitioner’s residency status because of the previous
finding of marriage fraud. On March 22, 2006, the BIA dismissed Carter’s appeal.
Two years later, on May 8, 2008, the petitioner filed an untimely motion to reopen
with the BIA alleging that her previous counsel failed to notify her of the BIA’s 2006
dismissal of her appeal. She also sought to apply for adjustment of status and/or
cancellation of removal. The BIA denied all relief. It did not specifically deny the
motion as untimely, but stated that, even if the statute of limitation were tolled, it would
deny the motion because the petitioner was not prima facie eligible for adjustment of
status or for cancellation of removal.
As to the petitioner’s request for adjustment of status, the BIA concluded that she
was ineligible for an immediate relative petition because the Attorney General had
previously found her to have engaged in marriage fraud. See 8 U.S.C. § 1154(c). The
BIA also determined that she was not eligible for adjustment of status because she was
statutorily precluded from obtaining an approved visa. See id.
The BIA then determined that the petitioner was ineligible for cancellation for
removal. The petitioner based her claim for cancellation of removal on the hardship that
would befall her grandson and goddaughter if she were removed to Jamaica. The BIA
determined that the hardship “to these individuals is not relevant to an application for

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cancellation of removal.” See 8 U.S.C. § 1229b(1)(D) (specifying that the hardship
exception applies only to the petitioner’s “spouse, parent, or child”). The BIA concluded
by stating that there was little chance “that discretion would be exercised in [the
petitioner’s] favor[,] . . . given her prior history of marriage fraud.”
Through counsel, the petitioner now seeks review of the BIA’s final order of
removal.
II
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. §
1252(a)(1), and we review the denial of a motion to reopen for an abuse of discretion.
Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003).
The petitioner’s primary argument is that the BIA and IJ violated her due process
rights by failing to conduct a hearing regarding the merits of her application for an
adjustment of status. We have jurisdiction over the due process claim under 8 U.S.C. §
1252(a)(2)(D), and review de novo whether a petitioner’s due process rights were
violated. Ezeagwuna, 325 F.3d at 405.
Carter appears to allege that the IJ violated her right to due process in his 2005
decision terminating her conditional permanent resident status. We do not have
jurisdiction to review the IJ’s 2005 decision, as it was not a final order of removal. 8
U.S.C. § 1252(a)(1); Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005).

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I note that while this Court lacks jurisdiction to review the discretionary1
grant or denial of an adjustment of status, the determination of whether a petitioner is
eligible for adjustment of status, “is a purely legal question” over which this Court retains
jurisdiction. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005).
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The petitioner also asserts that, on appeal from the IJ’s 2005 decision, the BIA
deprived her of due process by failing to conduct a hearing on her claim for adjustment of
status based on her second marriage. She asserts that she is eligible to adjust her status
and that had a hearing been held, she would have provided the visa that she obtained
based on her second marriage. We do not have jurisdiction over the BIA’s 2006 decision,
as the petitioner did not file a petition for review of that decision, nor could she do so at
this late date. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 394 (1995) (holding
that deportation orders are to be reviewed in a timely manner after issuance, regardless of
the later filing of a motion to reopen or reconsider).
To the extent that the petitioner argues that the BIA’s denial of her 2008 motion to
reopen was incorrect based upon the determination that she could not establish eligibility
for adjustment of status, the BIA did not abuse its discretion. To be eligible for a
discretionary grant of adjustment of status, the applicant must be eligible to receive an
immigrant visa, be admissible for permanent residency, and demonstrate that an
immigrant visa is immediately available to her when her application is filed. See 8 U.S.C.
§ 1255(a). The BIA found that Carter was not eligible for an immediate relative visa1
because she had previously been found to have engaged in marriage fraud. See 8 U.S.C.

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§ 1154(c) (“[N]o petition shall be approved if . . . the Attorney General has determined
that the alien has attempted or conspired to enter into a marriage for the purpose of
evading the immigration laws.”). This finding is not in error, as the record demonstrates
that: (1) in 1997 the INS denied the petitioner’s first I-751 petition because she had
engaged in marriage fraud, and (2) the IJ and the BIA concluded that this determination
was proper. Because the BIA correctly found that the petitioner could not satisfy the first
prong of establishing eligibility for adjustment of status under §1255(a), there is no need
to discuss whether, as she claims, she meets the remaining requirements for obtaining an
adjustment of status.
For the foregoing reasons, we deny the petition for review.
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