On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA Nos. A029-762-291 & A029-762-293)
The opinion of the court was delivered by: Chagares, Circuit Judge.
Submitted January 27, 2012
Before: AMBRO, CHAGARES, and HARDIMAN, Circuit Judges.
Mohammed Shuaib Khan ("Mohammed") and his son Faras Shuaib Khan ("Faras"), both citizens of Pakistan, petition for review of an order by the Board of Immigration Appeals ("BIA") denying their motion for an emergency stay of removal and motion to reopen their joint application for asylum, withholding of removal, or protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). Respondent United States Attorney General Eric Holder, Jr. has moved to dismiss the petition for review, arguing that we lack jurisdiction to consider it because it was untimely and because it was filed before the BIA rendered a final decision on the petitioners' motions. We hold that we do have jurisdiction. We will, therefore, deny the Attorney General's motion to dismiss. However, we will also deny the petition for review.
The petitioners initially were admitted to the United States as nonimmigrant visitors in December 1990. After they overstayed their visas, the United States Immigration and Naturalization Service initiated removal proceedings. Mohammed sought asylum, withholding of removal, and protection under the CAT, claiming that he was persecuted in Pakistan based on his membership in the Pakistan People's Party. Faras, who was a minor, was listed as a derivative beneficiary on Mohammed's asylum application. In January 2000, an Immigration Judge ("IJ") denied the petitioners' applications for asylum, withholding of removal, and protection under the CAT because they presented no credible evidence of past persecution or fear of future persecution. The BIA affirmed the denial on February 25, 2003, and the petitioners did not petition this Court for review of that denial. Instead, on October 21, 2010 - seven and one-half years later - they filed with the BIA a motion for an emergency stay of removal and a motion to reopen their case.
In the subsequent weeks, this case followed a somewhat unusual timeline. On March 29, 2011, the petitioners prematurely filed in this Court a petition for review, challenging the BIA's alleged refusal to adjudicate their motion for an emergency stay of removal and motion to reopen.The petition was filed within hours of Mohammed's scheduled removal from the United States and after a clerk at the BIA allegedly notified the petitioners that the BIA would not consider their motion for an emergency stay of removal. On the same day, a panel of this Court granted the petitioners a temporary stay of removal and ordered the parties to submit briefs addressing this Court's jurisdiction over the petition for review. Thereafter, on March 31, 2011, the Attorney General moved to dismiss the petition for lack of jurisdiction, arguing that we were without jurisdiction to adjudicate the petition because it was (1) untimely with respect to the BIA's February 2003 decision and (2) premature with respect to the BIA's anticipated decision on the petitioners' motion for an emergency stay of removal and motion to reopen.
All of this occurred before the BIA issued a final decision on the petitioners' October 2010 motions. Finally, on April 12, 2011, the BIA denied the petitioners' October 2010 motion to reopen because it was untimely and also denied the motion for an emergency stay of removal. The following week, on April 18, 2011, the petitioners moved for leave to amend their response to the motion to dismiss in order to address this Court's jurisdiction in light of the April 12, 2011 BIA order. The next day, a panel of this Court granted the motion to amend, referred the motion to dismiss to a merits panel, and vacated the temporary stay of removal entered on March 29, 2011 because the petitioners had not shown a likelihood of success on the merits of their petition for review. We now consider whether we have jurisdiction and, if so, whether the petitioners are entitled to relief.
The Attorney General contends that the petition for review should be dismissed because it was filed almost two weeks prior to the BIA's April 12, 2011 denial of the petitioners' motions, making it premature and depriving this Court of jurisdiction.*fn1 We have jurisdiction to review the BIA's denial of a motion to reopen unless 8 U.S.C. § 1252(a)(2) otherwise strips us of jurisdiction. Cruz v. Att'y Gen., 452 F.3d 240, 246 (3d Cir. 2006) ("Congress has explicitly granted federal courts the power to review 'any final order of removal' under 8 U.S.C. § 1252(a)(1). Implicit in this jurisdictional grant is the authority to review the denial of a motion to reopen any such final order."). The Government does not argue that any of the jurisdiction-stripping provisions in 8 U.S.C. § 1252(a)(2) deprive us of jurisdiction. The petitioners set forth a number of reasons why we had jurisdiction to review the BIA's alleged refusal to adjudicate their motions even before the April 12, 2011 order denying the motion to reopen. We need not address those arguments, however, because we conclude that we have jurisdiction to review the BIA's April 12, 2011 order, despite the petition for review having been filed before that order was issued.
There are differing views among our sister Courts of Appeals with regard to whether premature petitions for review can ripen upon a final decision by the BIA. The Courts of Appeals for the Fifth and Sixth Circuits have held that a premature petition for review does not ripen into a timely petition when the final order is eventually issued. Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007); Jaber v. Gonzales, 486 F.3d 223, 228--30 (6th Cir. 2007). The Court of Appeals for the Second Circuit, in contrast, has held that a premature petition can ripen provided that the BIA later orders the petitioner removed and the Attorney General has not shown that he would be prejudiced. Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010). We have yet to decide this issue.
We opt to follow the Court of Appeals for the Second Circuit and will not dismiss the petition on the basis that it was filed two weeks prematurely. We have held in civil cases that, where there is no showing of prejudice by the adverse party and we have not taken action on the merits of an appeal, "'a premature notice of appeal, filed after disposition of some of the claims before a district court, but before entry of final judgment, will ripen upon the court's disposal of the remaining claims.'" DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 215 (3d Cir. 2007) (quoting Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999)). This rule is referred to as the "Cape May Greene doctrine" after the case in which it was first recognized, Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184--85 (3d Cir. 1983). In Cape May Greene, the plaintiff filed its notice of appeal of the district court's grant of summary judgment while a cross-claim filed by the defendant was still pending. Id. at 184. While the appeal was pending, but before we had taken any action on the appeal, the parties dismissed the cross-claim and the district court entered a final judgment dismissing the case. Id. In holding that ...