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Rachak v. Attorney General of United States

United States Court of Appeals, Third Circuit

August 21, 2013

TARIK RACHAK, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent

Submitted Pursuant to Third Circuit LAR 34.1(a) January 23, 2013

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A055-045-704) Immigration Judge: Honorable Walter A. Durling

Anser Ahmad, Esq. Advanced Immigration Law Group Counsel for Petitioner Tarik Rachak

Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Margaret A. O’Donnell, Esq. Christina B. Parascandola, Esq. United States Department of Justice Office of Immigration Litigation, Civil Division Counsel for Respondent Attorney General

Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Tarik Rachak petitions for review of a Board of Immigration Appeals ("BIA") order deeming him ineligible for cancellation of removal and affirming the denial of a continuance. We will dismiss the petition in part and deny it in part.

I.

Rachak, who is a citizen of Morocco, was admitted to the United States as a lawful permanent resident in August of 2002. In 2006, he was arrested and charged with possession of marijuana under 35 Pa. Cons. Stat. § 780-113(a)(31). Rachak was placed on probation with supervision under Pennsylvania's "Accelerated Rehabilitative Disposition" program, Administrative Record ("A.R.") 217, but did not comply with the conditions of the program. Thereafter, the state court terminated Rachak's participation in the program and on February 16, 2011, Rachak pled guilty to the charge arising out of his 2006 marijuana possession arrest. A.R. 214-16.

On July 20, 2011, Rachak pled guilty to charges of possession of cocaine and drug paraphernalia under 35 Pa. Cons. Stat. §§ 780-113(a)(16) and (a)(32) in the York County Court of Common Pleas. He was sentenced to two consecutive terms of twelve months of probation. A.R. 186-202.

On September 29, 2011, the Department of Homeland Security charged Rachak with being removable under 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted of a controlled substance offense in July 2011. Rachak then filed a Pennsylvania Post Conviction Relief Act ("PCRA") petition attacking his July 2011 conviction. For a time, he successfully sought immigration continuances while he mounted his collateral attack, although the Government opposed some of these requests.

At a hearing on May 24, 2012, Rachak's attorney advised the Immigration Judge ("IJ") that his PCRA petition had been denied at the trial level "almost a month ago, " but was currently on appeal before the Pennsylvania Superior Court. A.R. 119.[1] The IJ issued an oral decision declining to grant any further continuances. In addition, the IJ ordered Rachak removed and noted that his 2006 conduct rendered him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a) because he had not accrued seven years of continuous residence in the United States. A.R. 63-65. The BIA affirmed, A.R. 3-5, and this timely petition for review followed.

Rachak does not argue that the final order of removal itself was erroneously granted. Instead, Rachak contends that the IJ and BIA wrongly determined that he was ineligible for cancellation of removal. He also contends that his ...


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