Juras v. Garland
21f4th53
| 2d Cir. | 2021Background
- Petitioner Bartlomiej Juras, a Polish citizen and lawful permanent resident, lived in Poland from 2007–2013 caring for his ill grandfather and attempted reentry in 2013.
- At a 2018 IJ hearing, the IJ found Juras had abandoned LPR status and was inadmissible for lack of valid entry documents, but—given DHS’s non-opposition—allowed withdrawal of his application for admission under 8 U.S.C. § 1225(a)(4).
- Juras appealed to the BIA, which affirmed the IJ’s inadmissibility finding and affirmed the withdrawal; Juras then changed counsel and sought review in the Second Circuit.
- Juras moved to reopen the BIA proceedings seeking to rescind his prior counsel’s request to withdraw the application; the BIA denied the motion as lacking egregious circumstances and as counsel’s actions binding on the client.
- Juras filed consolidated petitions raising three challenges: (1) IJ’s decision to allow withdrawal; (2) BIA’s denial of reopening; and (3) the IJ/BIA finding of inadmissibility—raising the threshold question whether a withdrawn application can produce a final order of removal for purposes of judicial review under 8 U.S.C. § 1252.
- The Second Circuit concluded it lacked jurisdiction to review (1) and (2) because withdrawal is statutorily discretionary and the denial to reopen is sufficiently connected to that discretion, but remanded to the BIA to clarify whether the inadmissibility finding survives the withdrawal (i.e., whether a final order exists).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) IJ’s decision to allow withdrawal of application for admission | Juras contends IJ erred by not explaining consequences, not asking specific questions, and not setting a departure date | Government argues withdrawal is a discretionary act under § 1225(a)(4) and delegated regulations; IJ’s procedures were discretionary | Dismissed for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B); no constitutional or pure question of law shown |
| 2) BIA’s denial of motion to reopen to withdraw prior counsel’s withdrawal request | Juras argues he did not understand consequences and seeks to rescind withdrawal | Government contends counsel’s actions bind client absent egregious circumstances; reopening denial connected to discretionary withdrawal | Dismissed for lack of jurisdiction: denial to reopen is sufficiently connected to underlying discretionary withdrawal and cannot be used as a backdoor to judicial review |
| 3) Whether the IJ/BIA inadmissibility finding survives withdrawal (i.e., is there a final order of removal) | Juras contends withdrawal relinquished his green card but challenges preclusive effect of the prior finding | Government and Amicus argue withdrawal renders the inadmissibility finding inoperative and thus no final order (or moot) | Court remanded to the BIA to clarify whether the IJ’s inadmissibility finding—affirmed at the time of withdrawal—has any preclusive or binding effect in future administrative proceedings; jurisdictional question left open pending BIA clarification |
Key Cases Cited
- Alibasic v. Mukasey, 547 F.3d 78 (2d Cir. 2008) (IJ’s finding of removability can constitute a final order for judicial-review purposes)
- Durant v. INS, 393 F.3d 113 (2d Cir. 2004) (motions to reopen may be unreviewable when review of underlying order is barred)
- Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99 (2d Cir. 2005) (limits on review of motions to reconsider/reopen when underlying order unreviewable)
- Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) (distinguishing when jurisdiction over reopening exists versus when barred)
- Kucana v. Holder, 558 U.S. 233 (2010) (§1252(a)(2)(B) applies to statutory, not regulatory, specifications of discretion)
- Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008) (determine jurisdiction by the underlying nature of the agency determination)
- I.N.S. v. Orlando Ventura, 537 U.S. 12 (2002) (prudential remand to an agency often required when agency expertise is needed)
- Lazo v. Gonzales, 462 F.3d 53 (2d Cir. 2006) (IJ’s conclusion of removability can function as an order of removal)