Munroop Randhawa v. ALBERTO R. GONZALES , United States Attorney General

* The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting
by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M UNROOP RANDHAWA ,
Petitioner-Appellant,
v.
ALBERTO R. GONZALES , United States Attorney
General,
Respondent-Appellee.
X---->
,----
N
No. 05-3694
On Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A45 599 877.
Submitted: November 15, 2006
Decided and Filed: January 30, 2007
Before: KEITH and CLAY, Circuit Judges; MAYS, District Judge.*
_________________
COUNSEL
ON BRIEF: Martin R. Guajardo, MARTIN, RESENDEZ & GUAJARDO, San Francisco,
California, for Petitioner. Blair T. O’Conner, Emily Anne Radford, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner Munroop Randhawa (“Petitioner”) argues on appeal that
the Board of Immigration Appeals (“BIA”) improperly denied her motion to reconsider a previous
BIA decision denying Petitioner’s motion to reopen her removal proceedings as untimely pursuant
to 8 C.F.R. § 1003.2(c)(2). Petitioner argues that a previously filed appeal to this Court tolled the
time limit for filing her motion to reconsider with the BIA. For the reasons that follow, we DENY
the petition for review.
On October 31, 2002, the BIA affirmed the decision of the Immigration Judge, who
concluded that Petitioner was removable under 8 U.S.C. §§ 1227(a)(1)(D)(i) & (G)(i). Petitioner
1

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No. 05-3694 Randhawa v. Gonzales Page 2
1See 8 U.S.C. § 1229a(c)(6)(B).
2See 8 U.S.C. § 1186a(c):
(4) The Attorney General, in the Attorney General’s discretion, may remove the conditional basis of
the permanent resident status for an alien . . . if the alien demonstrates that–
. . .
(B) the qualifying marriage was entered into in good faith by the alien spouse, but the
qualifying marriage has been terminated . . . .
3See also 8 C.F.R. § 1003.2(c)(2).
4See 8 C.F.R. § 1003.2(a).
filed an untimely motion to reopen the BIA’s decision on June 23, 2004, which the BIA denied for
that reason on July 28, 2004. Petitioner then filed a timely petition for review of the BIA’s denial
of her motion to reopen; she also filed an untimely motion to reconsider the BIA’s denial of her
motion to reopen on March 2, 2005. On May 10, 2005, the BIA denied Petitioner’s motion to
reconsider because it was not timely filed. Petitioner then brought the instant petition for review,
challenging the BIA’s denial of her motion to reconsider. Petitioner argues that her previously filed
petition for review tolls the 30-day deadline for filing a motion to reconsider.1
I.
Petitioner is a citizen of India and a medical doctor. On July 28, 1995, Petitioner married
Dr. Parneet Singh Sohi, a dentist and citizen of the United States, in a marriage arranged by their
families. Petitioner was admitted to this country on or about June 21, 1996, as a permanent resident
on a conditional basis, the condition being her marriage to Dr. Sohi. This marriage was judicially
annulled in the Ohio Court of Common Pleas on December 12, 1996, on the grounds that Petitioner
married Dr. Sohi “for the sole purpose of obtaining United States residency.” J.A. at 135-36. On
January 13, 1999, Petitioner received a notice to appear.
On September 29, 1999, a hearing was held on the notice to appear before United States
Immigration Judge Elizabeth A. Hacker (the “IJ”), wherein Petitioner conceded removability under
8 U.S.C. § 1227(a)(1)(D)(i) and denied removability under 8 U.S.C. § 1227(a)(1)(G)(i). Petitioner
sought to waive the requirement to file a joint petition to remove the condition on residence, as she
was no longer married.2 On May 8, 2001, the IJ denied Petitioner’s application for a waiver of the
requirement of filing a joint petition, finding that Petitioner was removable on all grounds stated in
the notice to appear. Petitioner appealed this decision to the BIA, which affirmed the IJ’s decision
on October 31, 2002.
On November 27, 2002, Petitioner filed a petition for review of the BIA’s October 31, 2002
decision in this Court. On June 23, 2004, Petitioner moved to reopen the October 31, 2002 decision
of the BIA. Petitioner acknowledged that her motion to reopen was not filed within 90 days of the
October 31, 2002 BIA decision as required by 8 U.S.C. § 1229a(c)(7)(C)(i),3 but argued that the BIA
should nevertheless reopen her proceedings on the strength of her “crucial piece of new
evidence”–the results of a polygraph test. J.A. at 45. On July 28, 2004, the BIA denied her motion
to reopen. The BIA noted that her motion to reopen was untimely, and although it had limited
discretion to reopen a case sua sponte at any time in extraordinary circumstances,4 Petitioner’s case
did not present such circumstances. Petitioner then filed a petition for review in this Court
challenging the BIA’s denial of her motion to reopen. The Court denied this petition for review on
June 7, 2006. Randhawa v. Gonzales, No. 04-4006, 184 F. App’x 502 (6th Cir. June 7, 2006)
(unpublished).

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No. 05-3694 Randhawa v. Gonzales Page 3
5Petitioner specifically argues that her petition for review of the BIA’s October 31, 2002 decision, which was
denied on January 31, 2005, tolls the time limit for filing a motion for reconsideration with the BIA. According to
Petitioner, since she filed her motion for reconsideration on March 2, 2005, it was filed within 30 days of January 31,
2005, and was therefore timely. Of course, Petitioner’s motion for reconsideration was directed at the BIA’s decision
of July 28, 2004, denying her motion to reopen–not its decision of October 31, 2002, denying her appeal from the IJ’s
decision. If Petitioner were correct (although we conclude that she is not), she could have filed a motion to reconsider
the BIA’s decision of October 31, 2002 on March 2, 2005. Moreover, if Petitioner were correct, the deadline for filing
a motion to reconsider the BIA’s decision of July 28, 2004 would be 30 days after this Court adjudicates her petition for
review of the BIA’s denial of her motion to reconsider, an event which occurred on June 7, 2006. Nevertheless, the basic
point remains that Petitioner’s motion to reconsider was timely if filing a petition for review tolled the deadline for filing
a motion to reconsider, and untimely otherwise. We therefore proceed to consider that question on its merits.
6See also 8 C.F.R. § 1003.2.
On January 31, 2005, this Court denied Petitioner’s petition for review of the BIA’s October
31, 2002 decision, holding that this Court did not have jurisdiction to review a discretionary decision
under 8 U.S.C. § 1186a(c)(4). See Randhawa v. Ashcroft, No. 02-4347, 121 F. App’x 612, 614-15
(6th Cir. Jan. 31, 2005) (unpublished). On March 2, 2005, Petitioner filed a motion to reconsider
the BIA’s July 28, 2004 denial of her motion to reopen. The BIA denied Petitioner’s motion to
reconsider on May 10, 2005, concluding that it was untimely. Petitioner then filed the instant
petition for review.
II.
Petitioner argues on this appeal that the BIA improperly denied her March 2, 2005 motion
to reconsider as untimely. According to Petitioner, the 30-day deadline in 8 U.S.C.
§ 1229a(c)(6)(B) was tolled while her petition for review was pending before this Court.5 This is
a question of law that the Court reviews de novo. Fieran v. INS, 268 F.3d 340, 344 (6th Cir. 2001).
The time limits for filing a motion for reconsideration or a motion to reopen are set forth in
8 U.S.C. §§ 1229a(c)(6)(B) & (7)(C) and are crystal clear.6 A motion to reopen must be filed within
90 days of the final administrative decision. § 1229a(c)(7)(C). A motion for reconsideration must
be filed within 30 days of the final administrative decision. § 1229a(c)(6)(B). These time limits
also exist within a larger statutory framework. Section 1252(b)(6) of Title 8 of the United States
Code, which governs judicial review of BIA orders, provides that “[w]hen a petitioner seeks review
of an order under this section, any review sought of a motion to reopen or reconsider the order shall
be consolidated with the review of the order.” The Supreme Court in Stone v. INS, 514 U.S. 386
(1995) considered the import of § 1252(b)(6) in answering an analogous question: Whether a
motion for reconsideration tolled the time limit for a petitioner to file a petition for review in the
court of appeals. The Court held that it did not. The Stone court reasoned that, “[b]y its terms,
§ 106(a)(6) [of the Immigration and Nationality Act, now codified at § 1252(b)(6)] contemplates two
petitions for review and directs the courts to consolidate the matters.” Id. at 394. Congress’s intent,
according to Stone, was that “deportation orders are to be reviewed in a timely fashion after
issuance, irrespective of the later filing of a motion to reopen or reconsider.” Id. Moreover, the
Stone court concluded that its holding was necessary because “only [the no-tolling] rule gives
meaning to [§ 1252(b)(6)].” Id. at 395. That is, an antecedent condition to the existence of two
petitions for review to be consolidated is the existence of two final orders. This is necessary for the
court of appeals to have jurisdiction. See § 1252(a). However, if filing a motion for reconsideration
rendered the underlying order nonfinal, then that order could not be a jurisdictional basis of a
petition for review. See Stone, 514 U.S. at 395. Section 1256(b)(6) would thus in effect become a
nullity.

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No. 05-3694 Randhawa v. Gonzales Page 4
7See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 513 (1981) (noting the existence of a “well-settled
rule that all parts of a statute, if possible, are to be given effect”).
8Our conclusion is reenforced by the First Circuit’s decision in Keo Chan v. Gonzales, 413 F.3d 161, 166 (1st
Cir. 2005), where the court considered an analogous question. In Keo Chan, the issue was whether a temporary stay
of removal imposed by the circuit court tolled the time limit for the petitioner to file a motion to reopen. The court held
that it did not. Id.
In response to this problem–that a construction of the statute should give effect to all its
provisions7–the petitioner in Stone suggested the following scenario by which § 1252(b)(6) would
have meaning: If an alien who petitioned for review of a final order subsequently filed a motion to
reconsider while the petition for review was pending, and the motion to reconsider was denied, and
that denial was appealed, then the two appeals could be consolidated under § 1252(b)(6). Id. at 395-
96. The Stone court rejected this argument because it rested on a view of finality that was internally
inconsistent. That is, in order for a court of appeals to have jurisdiction over a petition for review,
the BIA’s decision must be a “final order”–and a final order starts the ticking of the statutory 30-day
clock to appeal. It was undisputed that a petitioner need not file a motion to reopen or reconsider
before filing a petition for review. Thus, the Stone court noted, in order for the petitioner to be
correct, a BIA order would have to be a “final order” when the petition for review was filed, and
then cease to be a final order after a motion for reconsideration was filed. (For if the order did not
cease to be a final order, then there would be no basis for holding that the filing of a motion for
reconsideration generally tolls the 30-day time limit.) See id. at 396 (“If, as petitioner advocates,
the filing of a timely petition for reconsideration before seeking judicial review renders the
underlying order nonfinal, so that a reviewing court would lack jurisdiction to review the order until
after disposition of the reconsideration motion, one wonders how a court retains jurisdiction merely
because the petitioner delays the reconsideration motions until after filing the petition for judicial
review of the underlying order.”).
The situation here presents the inverse of the problem presented in Stone–Petitioner argues
that a petition for review tolls the time to file a motion for reconsideration, rather than arguing that
a motion for reconsideration tolls the time for filing a petition for review. Nevertheless, the
arguments operate in the same manner as in Stone. We therefore reach the same result: The
deadline for filing a motion for reconsideration is not tolled by filing a petition for review. Just as
in Stone, the existence of § 1252(b)(6) demonstrates Congress’s intent that petitions for review and
motions for reconsideration be filed concurrently. See Gao v. Gonzales, 464 F.3d 728, 729 (7th Cir.
2006) (“[T]he Board may rule on an alien’s request for reconsideration or reopening while a petition
for review of the main decision is before the court. That’s how it would be possible for two petitions
for judicial review to be pending simultaneously and consolidated, as 8 U.S.C. § 1252(b)(6)
provides.”). Moreover, like in Stone, construing the time limits in 8 U.S.C. § 1229a(c)(6)(B) to
allow a motion for reconsideration to be filed after a decision is rendered by the court of appeals
would render § 1252(b)(6) in effect a nullity, as motions for reconsideration generally would not be
filed until after a decision was rendered on the petition for review. And in the event that such a
motion for reconsideration were filed before a petition for review was decided, construing the
applicable statutes as to produce two final orders would result in an anomalous view of finality.
That is, were § 1252(b)(6) to have any meaning, a BIA decision would have to be a “final order”
pursuant to § 1252(b)(1) so that the court of appeals has jurisdiction to hear a petition for review,
but not “a final administrative order” such that the clock in § 1229a(c)(6)(B) starts ticking. This
interpretation makes no sense, and we reject it.8
Petitioner relies on Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005). This reliance is
misplaced. There, the issue was whether the BIA abused its discretion in dismissing a timely motion
to reopen because a petitioner, who had been granted voluntary departure, failed to depart before
the expiration of the voluntary departure period because he was waiting for the BIA’s decision on

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9Petitioner also argues that the BIA erred in its October 31, 2002 decision. This argument has no merit.
Petitioner’s claim amounts to an argument that this Court incorrectly decided Randhawa v. Ashcroft, No. 02-4347, 121
F. App’x 612 (6th Cir. Jan. 31, 2005) (unpublished), where this Court affirmed the October 31, 2002 decision of the BIA.
This issue is not properly before this Court because this is an appeal from the denial of a motion to reconsider the BIA’s
denial of Petitioner’s motion to reopen, and were the issue properly before us, we could not review a decision of a prior
panel. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
his motion to reopen. Id. at 1280-81. The court held that the period of voluntary departure was
tolled during the pendency of a motion to reopen because this result was necessary in order for aliens
to have access to the redress of a motion to reopen (a remedy provided by Congress). See id. at
1289. As discussed above, here the statutory scheme Congress envisioned is fulfilled by
simultaneous filings of petitions for review and motions for reconsideration. Furthermore, tolling
these statutory time periods is not necessary to vindicate a petitioner’s right to have a BIA decision
reviewed in the court of appeals, or by the BIA on a motion for reconsideration. Azarte provides
no support to Petitioner.
III.
We conclude that filing a petition for review does not toll the time limit for filing a motion
for reconsideration.9 The BIA thus correctly denied Petitioner’s motion to reconsider as untimely.
Petitioner’s petition for review is therefore DENIED.

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