Abdallah Abdulraheem Mohammad Khater, a Jordanian national, entered the United States in 2004 on a V-1 nonimmigrant visa as the spouse of a lawful permanent resident. To maintain his status, he was required to reside with his sponsoring spouse and possess valid employment authorization. After separating from his wife in 2006 and allowing his employment authorization to expire, Khater operated a hookah lounge in New Jersey. In 2011, the Department of Homeland Security commenced removal proceedings against him for violating the conditions of his admission. Over the next decade, Khater requested several continuances and moved for administrative closure while his wife and daughter sought to adjust his status. When the Immigration Judge denied these motions and proceeded to a final hearing, Khater requested a continuance to apply for asylum and later sought voluntary departure to Jordan. The Immigration Judge denied all requests, found Khater had violated his visa conditions, and issued a final order of removal. The Board of Immigration Appeals upheld the order, leading to this petition for review.
Circuit Judge Phipps, writing for the panel, addressed the petitioner's challenges in two distinct categories. First, regarding the denial of administrative closure and the continuance on the day of the final hearing, the court applied the standard from Li Hua Yuan v. Att'y Gen., which requires a showing that the denial was 'highly probable' to have affected the outcome of the proceedings. The court found that Khater failed to demonstrate that resolving these motions in his favor would have changed the Immigration Judge's determination that he violated the terms of his visa status. Consequently, these components of the petition were meritless. Second, the court addressed the challenge to the denial of voluntary departure. The court noted that 8 U.S.C. § 1229c(f) explicitly states that 'No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure.' The court rejected Khater's attempt to recharacterize the challenge as a due process claim, citing Jarbough v. Att'y Gen. to explain that 'artful labeling will not confer us with jurisdiction.' The court clarified that recasting challenges to factual or discretionary determinations as constitutional claims is insufficient to overcome the statutory bar, as the ruling did not implicate a constitutionally protected liberty interest.
The decision results in a partial denial and partial dismissal of the petition. The petitioner's removal order stands, and he is subject to enforcement. The ruling clarifies that in the Third Circuit, challenges to discretionary immigration rulings like administrative closure must show a high probability of affecting the outcome to be reviewable. Furthermore, it reinforces the absolute jurisdictional bar on reviewing voluntary departure denials, preventing litigants from bypassing this statutory limit through due process arguments. There are no remand instructions as the court dismissed the jurisdictional portion and denied the meritless portion.
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