Nour v. Atty Gen USA

210 F. App'x 204
CourtCourt of Appeals for the Third Circuit
DecidedDecember 28, 2006
Docket04-4635
StatusUnpublished

This text of 210 F. App'x 204 (Nour v. Atty Gen USA) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nour v. Atty Gen USA, 210 F. App'x 204 (3d Cir. 2006).

Opinion

OPINION OF THE COURT

FISHER, Circuit Judge.

Reda Elsayed Nour appeals from a decision of the Board of Immigration Appeals (“BIA”) denying his motion to remand and affirming the decision of the Immigration Judge (“IJ”). For the reasons set forth below, we will affirm.

I.

Nour is a native and citizen of Egypt who entered the United States on a B-l visitor’s visa in 1988. Nour entered removal proceedings for overstaying his visa and for misrepresenting a material fact for purposes of obtaining an immigration benefit. In a thorough opinion, the IJ found that he had overstayed his visa and that he had lied on his 1-485 adjustment of status application when he represented that he had never been arrested and that he had no prior marriages or children. In fact, Nour had been arrested twice for drug-related felonies and had an ex-wife and two children in Egypt. The IJ found that Nour’s testimony lacked credibility, specifically his explanation that his wife had filled out the 1-485, that he did not understand the difference between arrests and convictions, and that he thought the question about children did not include children born overseas.

Based on the finding that Nour had overstayed his visa and the finding that Nour sought to procure adjustment of status through fraud, the IJ ordered Nour removed to Egypt. He also denied Nour’s request for voluntary departure, finding that Nour had “obviously” lied to the court under oath and “lacks good moral character for his false testimony under oath.” The lack of good moral character made Nour statutorily ineligible for voluntary departure.

Nour filed a notice of appeal with the BIA, specifying five errors by the IJ. Although he indicated on his notice of appeal that he planned to file a brief, he did not do so, filing instead a motion to remand to the IJ, indicating that the Department of Homeland Security (“DHS”) had scheduled an interview with him to adjudicate an 1-130 immediate relative petition. The DHS responded in opposition to the motion to remand, arguing that because adjustment of status was discretionary and because the IJ had previously found that Nour lacked good moral character, his status would not be adjusted. The BIA concurred and denied Nour’s motion to remand and summarily affirmed the IJ’s decision finding Nour removable. Nour timely filed this appeal. 1

*206 II.

Before we can address the substance of Nour’s appeal, we must satisfy ourselves that we have jurisdiction. Pursuant to 8 U.S.C. § 1252(d)(1), we may only review a final order of removal if an alien has exhausted all administrative remedies. Failure to exhaust administrative remedies is a jurisdictional bar to review. Duvall v. Elwood, 336 F.3d 228, 232 (3d Cir.2003). In its brief, the government argues that we lack jurisdiction over Nour’s appeal because he failed to exhaust administrative remedies when he did not file a brief in support of his appeal to the BIA. However, we have explicitly held that the failure to file a brief with the BIA does not foreclose our review. Bhiski v. Ashcroft, 373 F.3d 363, 368-69 (3d Cir.2004). So long as the notice of appeal is “sufficient to make the BIA aware of precisely what issues [are] being appealed,” we may exercise jurisdiction over an alien’s appeal. Id. at 368. Nour’s notice of appeal claimed four separate errors regarding the sufficiency of the evidence and one regarding a credibility determination. Each claim included a detañed description of a particular piece of evidence that supported Nour’s position. These specific reasons were sufficient to apprise the BIA of the particularized bases for Nour’s appeal and provide us with jurisdiction. Id. 2

We also have jurisdiction over Nour’s appeal from the BIA’s dismissal of his motion to remand. The denial of a motion to remand is a final order and is, therefore, reviewable. See Sevoian v. Ashcroft, 290 F.3d 166, 169 (3d Cir.2002) (finding a motion to reopen reviewable as a final order of deportation). 3

III.

Nour’s claim that the IJ erred when he found that Nour was removable for making misrepresentations on an adjustment of status application is without merit. We review an IJ’s findings of fact for substantial evidence, asking whether such determinations are supported “ ‘by evidence that a reasonable mind would find adequate.’” Shah v. Attorney General, 446 F.3d 429, 434 (3d Cir.2006) (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc)). 4 We wül reverse only where the evidence compels a conclusion to the contrary. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). The evidence presented to the IJ was sufficient to support his finding that Nour made material misrepresentations on his adjustment of status form. The IJ determined that Nour had signed the form, indicating that he knew the contents of the application, which were clearly not true. Further, the IJ credited the testimony of the government’s witness who testified that, as was his habit, he would have asked Nour about his prior criminal history and his famüy history. The evidence in the record provides substantial support for the IJ’s determination that Nour was aware of the meaning of the 1-485 questions and an *207 swered them falsely. We will not disturb that determination.

Nour’s claim that there was insufficient evidence on which the IJ could make a credibility determination is equally meritless. We review adverse credibility determinations under a substantial evidence standard, overturning such a determination only where “ ‘any reasonable adjudicator would be compelled to conclude the contrary.’ ” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006) (quoting Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004)). In making an adverse credibility determination, the IJ must provide “specific, cogent reasons” why the applicant is not credible. Id. (citing Gao v. Ashcroft, 299 F.3d 266, 275-76 (3d Cir. 2002)).

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210 F. App'x 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nour-v-atty-gen-usa-ca3-2006.