Naseem Vithlani v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 19-3785 ___________ NASEEM ANANT VITHLANI, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-713-130) Immigration Judge: Amit Chugh ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) July 10, 2020 Before: AMBRO, GREENAWAY, JR. AND PORTER, Circuit Judges (Opinion filed: August 10, 2020) ___________ OPINION * ___________ PER CURIAM Naseem Vithlani petitions for review of the decision of an Immigration Judge (“IJ”), affirmed by the Board of Immigration Appeals (“BIA”) without opinion, that denied her motion to reopen her removal proceedings. We will deny her petition in part * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not and dismiss it in part. Because the parties are familiar with the record, we provide only a summary here. Vithlani is a citizen of India. In 1998, she entered the United States with a non- immigrant H-1B visa. In 2001, she was served with a Notice to Appear, charging her with removability for overstaying her visa. She conceded removability but had a pending application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). She alleged that she had suffered persecution in India as a result of her interfaith marriage to Anant Vithlani. The IJ denied relief and ordered her removal to India. The BIA dismissed her appeal in January 2004, and the removal order became final. In 2007, Vithlani filed two unsuccessful motions to reopen her removal proceedings. She filed petitions for review concerning the BIA’s denial of her second motion to reopen and the related motion for reconsideration. We denied them both. See Vithlani v. Att’y Gen., 360 F. App’x 277 (3d Cir. 2010). In 2011, Vithlani filed another motion to reopen to the BIA, asserting eligibility for adjustment of status based on her 2010 marriage to a United States citizen, David Childress. The BIA denied the motion, finding that it was untimely and number-barred, and that it did not demonstrate an exceptional situation warranting sua sponte reopening. The BIA later also denied her motion to reconsider, stating that becoming eligible for adjustment of status was not an exceptional situation warranting the grant of an untimely constitute binding precedent. 2 motion to reopen. In 2019, Vithlani filed the motion to reopen at issue here, this time before the IJ. She sought sua sponte reopening, again seeking to apply for adjustment of status. This time, she relied on an approved I-130 petition filed by Ronald Geis, her third husband and United States citizen. She also stated that she is her husband’s caregiver, as he was permanently disabled in a job-related accident. Vithlani submitted exhibits in support of her motion, including country conditions in India, documents relating to the I-130 petition, her own declaration, and a declaration by her husband. The IJ denied Vithlani’s motion to reopen, stating that the motion ...

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