Ghaly v. Immigration & Naturalization Service

57 F. App'x 225
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 29, 2003
DocketNos. 01-3357, 01-4236
StatusPublished

This text of 57 F. App'x 225 (Ghaly v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ghaly v. Immigration & Naturalization Service, 57 F. App'x 225 (6th Cir. 2003).

Opinion

OPINION

GILMAN, Circuit Judge.

Ramsis Ghaly, M.D., appeals two denials by the Board of Immigration Appeals (BIA) to reconsider and reopen his deportation proceedings. These denials occurred on March 8, 2001 and October 26, 2001. The BIA denied the first motion on the basis that Ghaly had engaged in a pattern of violating the immigration laws, and denied the second motion because it was barred as a successive motion to reopen under 8 C.F.R. § 3.2(c)(2). As to Ghaly’s claim for relief under the Convention Against Torture (CAT), the BIA ruled that the claim was time-barred pursuant to 8 C.F.R. § 208.18(b). Ghaly argues that the BIA abused its discretion by refusing to reconsider and reopen his deportation proceedings. For the reasons set forth below, we DENY the petition for review.

I. BACKGROUND

A. Factual background

Dr. Ramsis Ghaly is a native and citizen of Egypt. He originally entered the United States as a nonimmigrant visitor for pleasure on November 5, 1984, with authorization to remain until November 4, 1985. Ghaly married Ann Marie Wagner, a United States citizen, on July 30, 1985. Although Wagner applied for immediate relative-visa status on Ghaly’s behalf, the application was later withdrawn, and Wagner and Ghaly were divorced on January 28, 1986. During an interview with the INS in 1986, Wagner said that she had received payment as an inducement to marry Ghaly. Based on this interview and their investigation, the INS determined that Ghaly’s marriage to Wagner was a [227]*227sham. The INS served Ghaly on March 4, 1986 with an order to show cause why he should not be deported. Much of the substance of Ghaly’s petitions to this court involve allegations of procedural irregularities and due process violations concerning these initial deportation proceedings.

On January 26, 1987, the immigration judge ordered Ghaly deported to Egypt in abstentia, based on Ghaly’s failure to appear at the hearing scheduled for that date. Ghaly appealed this decision to the BIA on February 2, 1987. On May 1, 1992, the BIA dismissed Ghaly’s appeal and denied his motion to remand to the immigration judge. The BIA held that Ghaly had not demonstrated reasonable cause for his failure to appear, that the immigration judge properly found him de-portable, and that the immigration judge did not err in denying Ghaly’s application for voluntary departure. Ghaly never appealed the BIA’s May 1, 1992 decision to this court.

Ghaly has also been involved in other immigration proceedings. Both the Northwestern Medical Faculty Foundation and the University of Illinois at Chicago filed employment-based visa petitions pursuant to 8 U.S.C. § 1153(b)(2) on behalf of Ghaly. These petitions were initially approved, but later revoked by the INS as a result of marriage fraud. Ghaly pursued appeals on these matters in the United States District Court for the Northern District of Illinois and in the United States Court of Appeals for the Seventh Circuit. Both courts upheld the INS’s ruling on the grounds that the decision to revoke Ghaly’s petitions was based upon substantial evidence, and that the record established that Ghaly had entered into a fraudulent marriage. Ghaly v. INS, 48 F.3d 1426, 1432-35 (7th Cir.1995); Ghaly v. INS, 1994 WL 171414 (N.D.Ill.1994).

Ghaly subsequently married Mona Ha-bek, a native of Egypt and a legal resident alien, in May of 1986. There is less evidence in the record concerning this marriage. Habek, however, apparently referred to her marriage to Ghaly as a sham and a fraud. The Seventh Circuit’s opinion mentioned this second marriage, but the court relied primarily on Ghaly’s marriage to Wagner in reaching its decision. Ghaly, 48 F.3d at 1433.

B. Procedural background

The current litigation results from a motion to reopen Ghaly’s deportation proceedings filed with the BIA on April 21, 1995, and a second motion to reopen and reconsider filed on April 3, 2001. On March 8, 2001, the BIA denied Ghaly’s first motion after examining all the evidence of Ghaly’s previous immigration proceedings and determining that a pattern of noncompliance had been established. Further, the BIA noted that Ghaly had delayed filing his motion for almost three years, but then filed it only two weeks after receiving an order to appear for deportation.

The BIA denied Ghaly’s second motion on October 26, 2001. Because the second motion was deemed a successive motion to reopen his proceedings pursuant to 8 C. F.R. § 3.2(c)(2), the BIA concluded that it was number-barred (i.e., in general, an alien is permitted to file only one motion to reopen) and not within any of the exceptions permitting the filing of more than one motion to reopen. Finding no error in its first denial of the motion to reopen, the BIA denied the motion to reconsider. The BIA also held that Ghaly’s CAT claim was not timely. Ghaly appeals the denial of both motions, arguing that the BIA abused its discretion in so ruling.

[228]*228II. ANALYSIS

A. Standard of review

The BIA’s denial of a motion to reopen or reconsider deportation proceedings is reviewed using an “abuse of discretion” standard. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ashki v. INS, 233 F.3d 913, 917 (6th Cir. 2000). “In determining whether the Board abused its discretion, this Court must decide whether the denial of Petitioner’s motion to reopen deportation proceedings was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Balani v. INS, 669 F.2d 1157,1161 (6th Cir.1982).

B. The BIA did not abuse its discretion by denying Ghaly’s motions to reopen and reconsider

Ghaly’s petitions boil down to two basic arguments. First, Ghaly argues that the BIA did not properly consider the record before ^consisting of Ghaly’s underlying deportation proceedings, the new evidence he produced challenging the findings of the Seventh Circuit regarding his alleged sham marriages, and the adverse conditions in Egypt for Coptic Christians such as himself-when denying his two motions to reopen his deportation proceedings. Second, he argues that the BIA erroneously dismissed his claim under the CAT as untimely. Each of these arguments is considered below.

1. The BIA properly considered the record and concluded that Ghaly had engaged in a practice of violating the immigration laws

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