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Hoxha v. Holder

March 2, 2009

ILIR HOXHA; FJORALBA HOXHA; BRENDA HOXHA, PETITIONERS
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES;EMILIO GONZALEZ, DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEWBOARD OF IMMIGRATION APPEALS, RESPONDENTS



On Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A79-433-629, A79-433-630, and A79-433-631. Immigration Judge: Michael W. Straus.

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 9, 2008

Before: SCIRICA, Chief Judge, McKEE, and SMITH, Circuit Judges.

OPINION

Petitioners Ilir Hoxha (Hoxha), his wife Fjoralba, and his daughter Brenda, petition for review of the order of the Board of Immigration Appeals (BIA), which affirmed the denial by the Immigration Judge (IJ) of Hoxha's application for asylum and withholding of removal.*fn1 Hoxha contends that we should grant the petition for review because the IJ abused his discretion by denying a motion by counsel for a continuance. The government asserts that we lack jurisdiction to review this contention because, although Hoxha raised this point in his Notice of Appeal filed with the BIA, he did not address the issue in the brief he filed thereafter. In short, the government asserts that Hoxha failed to exhaust the issue. For the reasons set forth below, we conclude that the issue was exhausted and that we have jurisdiction. Nonetheless, because the BIA did not address whether the IJ erred by denying the motion for a continuance, we will remand this case to the BIA for it to address that issue in the first instance pursuant to I.N.S. v. Ventura, 537 U.S. 12, 17 (2005).

I.

Ilir, Fjoralba, and Brenda Hoxha are natives and citizens of Albania. They arrived in Miami, Florida in January of 2002, and requested asylum, withholding of removal, and relief under the Convention Against Torture (CAT) as applicants under the Visa Waiver Pilot Program. Their claims were referred to an IJ. Hoxha retained Florida counsel, who filed a motion to transfer venue to Pennsylvania, where his sisters lived. The motion was granted, and a hearing was scheduled in Philadelphia for September 5, 2002. After several continuances and the appearance of new counsel on two occasions, Hoxha appeared for a hearing before an IJ on December 6, 2005. At that time, his third attorney moved to withdraw in the presence of yet another attorney, who was ready to enter his appearance on Hoxha's behalf. The IJ granted the motion to withdraw, but denied the new counsel's request for one more continuance. At the conclusion of the hearing, the IJ denied Hoxha's application for asylum, withholding of removal, and the protections of the CAT.

Hoxha's counsel filed a timely appeal to the BIA. The Notice of Appeal listed four reasons for the appeal. The first reason stated: "The Immigration Judge erred in denying [the] request for a continuance as his previous attorney withdrew just prior to his individual hearing. For this reason, [Hoxha's] counsel was not able to assist him in preparing his claim." The other three issues pertained to the merits of Hoxha's claim for asylum. In response to an inquiry in item eight of the Notice of Appeal form, Hoxha indicated that he intended to file a separate written brief.

Consistent with his response in the Notice of Appeal form, Hoxha filed a brief in support of his appeal. The brief addressed the merits of his claim for asylum and withholding of removal. It was silent, however, as to whether the denial of the continuance was error.

On appeal, the BIA affirmed the IJ's denial of asylum and withholding of removal. It did not address in its opinion Hoxha's contention that the IJ had erred by denying the motion for a continuance.

This timely petition for review followed. Hoxha does not take issue with the BIA's decision denying him asylum and withholding of removal. He argues only that the IJ abused his discretion by denying the motion made by Hoxha's new counsel for a continuance. Because this issue was not addressed in the brief filed with the BIA, the government asserts that the issue has not been exhausted and that jurisdiction is lacking.

II.

Section 1252(d) of the Immigration and Nationality Act provides that the courts of appeals "may review a final order of removal only if--(1) the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. ยง 1252(d)(1). In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir. 2003), we declared that this statutory provision required an alien "to raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim." Id. at 595. In scrutinizing Abdulrahman's Notice of Appeal and his brief, we were unable to find any suggestion that he challenged at the administrative level the specific ground ...


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