PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-1167 _____________ ABDULMALIK MAHYOUB MULHI ABDULLA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________ On Petition for Review of an Order of the Board of Immigration Appeals (No. A041-706-347) Immigration Judge: Nelson V. Padilla ____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 19, 2019 ____________ Before: CHAGARES, MATEY, and FUENTES, Circuit Judges. (Filed: August 20, 2020) Julie A. Goldberg, Esq. Goldberg & Associates 5586 Broadway, 3rd Floor Suite 716 Bronx, NY 10463 Counsel for Petitioner Claire Workman, Esq. Senior Litigation Counsel Don G. Scroggin, Esq. Trial Attorney United States Department of Justice Office of Immigration Litigation P.O. Box 878 Washington, DC 20044 Counsel for Respondent ____________ OPINION OF THE COURT ___________ CHAGARES, Circuit Judge. Abdulmalik Mahyoub Mulhi Abdulla petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion for certification of late-filed appeal. After an immigration judge (“IJ”) ordered Abdulla removed from the United States, Abdulla had 30 days to appeal that order to the BIA but did not do so for 78 days. Abdulla moved the BIA to exercise its discretion to permit the late-filed appeal, citing the exceptional circumstances presented by his appeal, 2 which raises several claims of ineffective assistance of counsel. Because we conclude that the BIA’s discretion in the context of this case is not cabined by law, regulation, or a settled course of prior agency action, we lack jurisdiction to review the BIA’s decision not to self-certify the late-filed appeal and will dismiss the petition for review in part. We also conclude that we lack jurisdiction to review Abdulla’s unexhausted merits claim and non-colorable due process claim. And because Abdulla’s other claims are unavailing, we will deny the petition in part. I. Abdulla was born in Yemen in 1976 to two Yemeni parents. In 1986, when Abdulla was nine years old, his father became a naturalized United States citizen. Three years later, Abdulla’s parents legally separated and then divorced. Abdulla and his brother, Fawaz Abdulla, joined their father in the United States in May 1990, and Abdulla became a lawful permanent resident at that time. Abdulla contends that in that same year, his father filed N-600 applications to naturalize both children, but that due to former counsel’s ineffective assistance, this documentation was not made part of the Administrative Record. While Fawaz Abdulla received proof of United States citizenship in 1995, Abdulla claims that his application was never processed for reasons unknown. 1 In 2014, Abdulla was convicted of food stamp fraud, wire fraud, and aiding and abetting, in the United States District Court for the District of Maryland. In March 2017, 1 According to the United States Department of Homeland Security (“DHS”), Abdulla’s N-400 naturalization application was filed in 1996 and denied in 2009. 3 DHS issued a Notice to Appear (“NTA”) alleging that Abdulla was not a United States citizen and that as a result of his federal criminal convictions, he was ...
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