NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

Nos. 05-5410 and 06-2921

RIADH BADREDDINE,

P e titio n e r in No. 05-5410

v. A T T O R N E Y GENERAL OF THE UNITED STATES;

B U R E A U OF CITIZENSHIP AND IMMIGRATION SERVICES;

B U R E A U OF IMMIGRATION & CUSTOMS ENFORCEMENT

RIADH BADREDDINE,

P e titio n e r in No. 06-2921

v. A T T O R N E Y GENERAL OF THE USA

On Petition for Review of Decisions

a n d Orders of the Board of Immigration Appeals

B IA No. A78-499-121

Im m ig ra tio n Judge: Hon. Charles M. Honeyman

Submitted under Third Circuit LAR 34.1(a)

J u n e 8, 2007

B E F O R E : SMITH and GREENBERG, Circuit Judges, and

P O L L A K ,* District Judge (F ile d : June 11, 2007) OPINION OF THE COURT GREENBERG, Circuit Judge.

T h e se matters come on before the court on consolidated petitions for review of d e c is io n s and orders of the Board of Immigration Appeals ("BIA") entered November 15, 2 0 0 5 , and May 4, 2006, brought by Riadh Badreddine, a Tunisian. The decision and o rd e r of May 4, 2006, denied a motion to reopen the decision and order of November 15, 2 0 0 5 , which had affirmed a decision and order of an immigration judge ("IJ") of August 2 0 , 2004, denying Badreddine's request for a continuance of adjustment of status p ro c e e d in g s before him. The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and we h a v e jurisdiction under 8U.S.C. §§ 1252(a) and (b). See Khan v. Attorney General, 448 F .3 d 226, 229 (3d Cir. 2006).

The background of these proceedings insofar as it involves a paper trail is quite c o m p le x , largely because Amber Leigh Smith, Badreddine's wife at least to the extent th a t she entered into a ceremonial marriage with him, has prosecuted parallel proceedings a ris in g from the same circumstances involved in these proceedings. But, notwithstanding E a ste rn District of Pennsylvania, sitting by designation. th e seeming complexity of this case, in reality the underlying circumstances triggering it a re quite straight forward. After Badreddine lawfully entered the country as a seaman, he o v e rs ta ye d the period authorized for him to remain here and then married Amber Smith.

Thereafter, she filed applications seeking a decision permitting him to stay in the country, a n d Badreddine himself on April 3, 2001, filed an application seeking an adjustment of h is status by reason of his marriage. The actual dispute centers on the substantive issue of w h e th e r his marriage is bona fide.

T h e IJ on August 20, 2004, in the adjustment of status proceedings, though not a d d re ss in g the bona fides of the marriage, pointed out that Badreddine did not have a cu rren t, approved visa and that his previous visa had been revoked. Moreover, the IJ in d ic a te d that there was no reasonable likelihood that Badreddine's visa application w o u ld be approved. Thus, he denied the application for a continuance and ordered B a d re d d in e 's removal to Tunisia. On appeal, in its November 15, 2005 decision and o r d e r , the BIA held that the IJ did not abuse his "discretion in denying [Badreddine's] m o tio n to continue [the] proceedings as there was no relief available to [Badreddine] at th e time, and any future approval of a visa petition was speculative at best." B a d re d d in e also filed a motion to remand with the BIA because he had an u n a p p ro v e d visa petition pending. The BIA denied that motion in its November 15, 2005 d e c is io n and order explaining: T h e respondent also filed a motion to remand based upon a filed but n o t approved visa petition, citing to Matter of Velarde, 23 I&N Dec. 253 (B IA 2002). DHS has opposed, stating that the second visa petition filed on b e h a lf of the respondent was revoked, and a third visa petition was denied.

DHS further points out that the Board affirmed the revocation and denial of th e visa petition, and affirmed the District Director's finding that the m a rr ia g e was entered into for the purpose of evading the immigration laws.

Pursuant to section 204(c) of the Immigration and Nationality Act, 8U.S.C.

§ 1154(c), no petition may be approved if the respondent has been found to h a v e entered into a sham marriage. As the visa petition is unlikely to be a p p ro v e d , and DHS has opposed the motion in any event, the motion is d e n ie d .

B a d re d d in e filed a timely petition for review of the November 15, 2005 decision and o rde r.

S u b s e q u e n tly, Badreddine filed a motion to reopen the November 15, 2005 d e c i sio n and order. The BIA denied the motion on May 4, 2006, explaining as follows: T h e respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to re o p e n our decision dated November 15, 2005. The respondent seeks re o p e n in g to apply for adjustment of status under section 245 of the Im m ig ra tio n and Nationality Act. As an initial matter, we note that the re sp o n d e n t's March 8, 2006, motion to reopen is untimely, inasmuch as it w a s not filed within 90 day[s] of our November 15, 2005, final a d m i n is tra tiv e order. See 8 C.F.R. § 1003.2(c). Furthermore, we find that th e respondent has failed to establish that reopening is warranted pursuant to our sua sponte authority. See 8 C.F.R. § 1003.2(a). We find that the r e sp o n d e n t 's subsequent eligibility for discretionary relief does not establish ex ce p tio n al circumstances. See Matter of J-J-, 21 I&N Dec. 976 (BIA 1 9 9 7 ) (holding that the Board's power to reopen or reconsider cases sua sp o n te is limited to exceptional circumstances and is not meant to cure f ilin g defects or circumvent the regulations, where enforcing them might re su lt in hardship). Accordingly, the motion is denied.

B a d re d d in e filed a timely petition for review of the May 4, 2006 decision and order. We h a v e consolidated the petitions for review.

In reviewing the IJ's denial of the motion for a continuance and the BIA's decision a n d order affirming the denial we review the decision and order of the IJ to the extent that th e BIA adopted the IJ's decision. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en b a n c ). Of course, overall we are exercising abuse of discretion review. Khan, 448 F.3d a t 233. In this regard we point out that Badreddine largely challenges the August 20, 2 0 0 4 decision and order based on events which occurred before that day. Thus, he c o n te n d s that the IJ erred in continuing an adjustment of status merits hearing at the g o v e rn m e n t's request over his objection on January 29, 2004, when the government se rv e d a Notice of Intent to Revoke his visa. The IJ, however, was evenhanded as on July 1 5 , 2004, over the government's objection, he again continued the matter but did so at B a d re d d in e 's request. Regardless, however, it is important to remember that we do not re v ie w these earlier continuances as they are not directly before us and are significant o n ly insofar as they help put the proceedings that are before us in context.

W h a t is first before us is the IJ's decision and order of August 20, 2004. At that tim e , the matter long had been pending and there seemed to be little likelihood that B a d re d d in e would obtain visa relief. Thus, he simply was not lawfully in the country and, o n the basis of his status, he should have been removed. Plainly, we cannot say that the IJ a b u se d his discretion when he refused to grant a continuance as we can see no reason to b eliev e that Badreddine could obtain visa relief. In the circumstances, we cannot disturb th e November 15, 2005 decision and order which affirmed the August 20, 2004 decision an d order.

B a d re d d in e 's petition for review of the May 4, 2006 decision and order plainly is w ith o u t merit. As the BIA pointed out, he filed the motion to reopen the November 15, 2 0 0 5 decision and order on March 8, 2006. Consequently, it was untimely as he filed it m o re than 90 days after November 15, 2005. See 8 C.F.R. § 1003.2(c). While it is true that the BIA sua sponte could have reopened the November 15, 2005 decision and order, s e e 8 C.F.R. § 1003.2(a), it decided not to do so as it held that Badreddine did not e sta b lis h exceptional circumstances to support such action. Our jurisdiction does not e x te n d to a review of that decision. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d C ir. 2003). Finally we reject Badreddine's reliance on the Administrative Procedure Act, o n which basis he attempts to inflate his claims to constitutional status, as it is not a p p lic a b le in these proceedings. See Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d C ir. 1976); see also Kowalczyk v. INS, 245 F.3d 1143, 1150 n.5 (10th Cir. 2001).

T h e petitions for review of the decisions and orders of the BIA entered November 1 5 , 2005, and May 4, 2006, will be denied.

*Honorable Louis H. Pollak, Senior Judge of the United States District Court for the