Gurcharan SINGH-BHATHAL, aka Gurcharan Singh-Kur, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 97-70502
United States Court of Appeals, Ninth Circuit
Decided March 18, 1999
170 F.3d 943 | 99 Cal. Daily Op. Serv. 1951 | 1999 Daily Journal D.A.R. 2529
Douglas Ginsburg, Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. INS No. Akv-unn-bjx.
Before: D.W. NELSON, KOZINSKI and Noonan, Circuit Judges.
Opinion by Judge KOZINSKI; Dissent in part by Judge KOZINSKI; Dissent by Judge NOONAN.
KOZINSKI, Circuit Judge (except as to Part V):
We review a decision of the Board of Immigration Appeals that an Immigration Judge who gains jurisdiction over a deportation proceeding pursuant to
I
On July 24, 1994, Gurcharan Singh-Kaur (Singh), a native and citizen of India, was taken into custody by the Immigration and Naturalization Service for entering the United States without inspection. The following day, Singh was served with an Order to Show Cause alleging he was deportable pursuant to
Some seventeen months later, in April 1996, the INS apprehended Singh in Bellevue. Singh subsequently moved that his case be reopened and venue transferred to Seattle, Washington. On June 5, the IJ in Phoenix granted Singh‘s motion to reopen and transferred venue to Seattle. In the meantime, the INS discovered that Singh had filed an asylum application under an alias, but determined that the application was invalid because he had been placed in deportation proceedings before he filed the asylum application. At the Seattle hearing, Singh conceded deportability and indicated he intended to apply for asylum. The INS moved for reconsideration of the Phoenix IJ‘s order reopening Singh‘s case. The Seattle IJ granted the INS‘s motion after concluding that she had jurisdiction to reconsider the prior order. The Seattle IJ subsequently found that
On appeal, the BIA determined that the Seattle IJ had jurisdiction to reconsider the Phoenix IJ‘s order to reopen pursuant to
We first dispose of Singh‘s argument that the INS‘s failure to appeal the Phoenix IJ‘s interlocutory order reopening his case rendered that order final. Interlocutory appeals are ordinarily not entertained by the BIA. See Matter of Correa, 19 I. & N. Dec. 130, 130 (BIA 1984). Contrary to Singh‘s unsupported assertion, the INS was not foreclosed from moving for reconsideration by its failure to appeal the non-appealable order to the BIA.
III
Singh challenges the Seattle IJ‘s jurisdiction to reconsider the Phoenix IJ‘s rescission of the in-absentia deportation order entered on November 30, 1994. An IJ “may upon his/her own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any case in which he/she had made a decision.”
The application of these regulations to Singh‘s case is straightforward: Once the Phoenix IJ granted Singh‘s request for a change of venue to Seattle, the Seattle IJ assumed jurisdiction over the case. Under subsection 103.5(a)(1)(i), the Seattle IJ had jurisdiction to grant the INS‘s motion to reconsider the prior order reopening Singh‘s case. We defer to an agency where its interpretation of its own regulations is neither clearly erroneous nor inconsistent with the regulations. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Stinson v. United States, 508 U.S. 36, 45 (1993); Abboud v. INS, 140 F.3d 843, 848-49 (9th Cir. 1998). Here, we defer without hesitation because the regulations clearly granted the Seattle IJ jurisdiction to reconsider the Phoenix IJ‘s order to reopen.
The dissent‘s argument that section 242.22 limits jurisdiction over reopening or reconsideration to an IJ who has made a previous decision in the case is unsupported by the language or the logic of the INS‘s regulations. Section 242.22 does not say that an IJ who has made a previous decision is the only IJ who may reopen or reconsider the case. And how could it? Under the dissent‘s interpretation of section 242.22, a case could never be reopened or reconsidered if the IJ with initial jurisdiction quits, dies or, as here, loses jurisdiction upon granting the alien‘s motion for transfer of venue. We decline to impose upon the INS such manifestly absurd results, especially where its interpretation of its own regulation is consistent with the regulation‘s language and purpose.
IV
As we have found that the BIA correctly determined that the Seattle IJ had jurisdiction to vacate the Phoenix IJ‘s erroneous order reopening the proceedings, Singh‘s due process claim necessarily fails. Though Singh argues that the in-absentia order of deportation deprives him of a fair opportunity to present his asylum claims, he overlooks the fact that he was free to do so at the November 30th hearing he skipped without justification. Even if Singh had moved for reopening within 180 days of the deportation order, he could have justified his failure to appear at the deportation hearing only upon showing that exceptional circumstances excused his absence. See
Although Singh may have received poor advice, this does not alter the fact that he failed to appear at his hearing, not because of illness, a death in the family, or some similarly severe impediment, but because he took the word of the consultant over that of the INS. Singh “cannot complain of an order entered in absentia, ... if [he] ‘voluntarily choose[s] not to attend a deportation hearing which may affect [him] adversely.’ ” Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996) (quoting United States v. Dekermenjian, 508 F.2d 812, 814 (9th Cir. 1974)).
Singh contends that section 1252b does not preclude an untimely reopening where the petitioner seeks asylum. Though a BIA dissenter discussed this very issue in detail, Singh himself raises this claim for the first time on appeal, which constitutes “a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.” Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994) (quoting Vargas v. U.S. Dep‘t of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987)) (internal quotation marks omitted). Similarly, Singh‘s res judicata and public policy claims were not raised before the BIA in any fashion and, therefore, may not be reviewed by this court.
PETITION DENIED.
KOZINSKI, Circuit Judge, dissenting in part:
The majority declines to review Singh‘s claim that
Rashtabadi‘s allegations of due process violations are exactly the sorts of procedural errors which require exhaustion. Given the opportunity, the BIA could have corrected any of the alleged procedural errors. Thus, since Rashtabadi did not present his arguments to the BIA, we have no jurisdiction to resolve them.
Id. at 1567 (emphasis added) (citations omitted). Here, the BIA could well have “corrected any of the alleged procedural errors” simply by adopting the views expressed by the dissent.
Rashtabadi reflects the standard rationale for requiring exhaustion, which is to ensure that agencies are given first opportunity to rule on the issue:
The agency should be free, even when it errs, to work out its own problems. The courts should not interfere with the job given to it until it has completed its work.... The agency, as the tribunal of first instance, should be permitted to develop the factual record upon which decisions should be based. Like the trial court, the agency should be given the first chance to exercise discretion and apply its expertness. In addition, exhaustion is an aspect of the allocation of overtaxed judicial resources; judicial efficiency requires the courts to stay their hand while the party may still vindicate his rights in the administrative process. If he is required to pursue further agency remedies, the courts may never have to intervene.
Bernard Schwartz, Administrative Law § 8.30 (2d ed. 1984) (footnotes omitted). Indeed, Rashtabadi noted that the petitioner there might still obtain administrative relief by “mov[ing] the Board to reopen his appeal.” Rashtabadi, 23 F.3d at 1567.
Though Rashtabadi uses the language of jurisdiction, it does not use the term in the sense of subject matter jurisdiction—that we have no power to hear the appeal at all. Rather, it says we have no jurisdiction to hear an argument the BIA did not consider because the BIA could have corrected the problem, had it only been aware of it. Where, as here, the agency was aware of the problem, where it did apply its expertise, where it did exercise its discretion, it is bizarre—and decidedly unfair to petitioner—for us to refuse to review that decision because the argument below was made by the dissenter. Neither the doctrine of exhaustion of remedies nor Rashtabadi calls for such a harsh result.
The agency here had a fair opportunity to resolve the question and took its best shot. Relegating people in Singh‘s position to a hopeless motion to reopen before the BIA strikes me as the kind of wooden proceduralism that serves nobody‘s interests except those of the lawyers.
NOONAN, Circuit Judge, dissenting:
A single issue was presented to the Board of Immigrations Appeals (the Board): did an immigration judge (IJ) in Seattle have jurisdiction to correct a decision to reopen made by an immigration judge in Phoenix? The single issue before us is resolved by the regulations promulgated by the Immigration and Naturalization Service (the INS) itself. We, of course, defer to the agency‘s own interpretation of its regulations but do not blindly accept an interpretation contradictory to their text.
§ 242.22 Reopening or reconsideration.
Except as otherwise provided in this section, a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter. The immigration judge may upon his/her own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any case in which he/she had made a decision, unless jurisdiction in the case is vested in the Board of Immigration Appeals under part 3 of this chapter. An order by the immigration judge granting a motion to reopen may be made on Form I-328. A motion to reopen will not be granted unless the immigration judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing; nor will any motion to reopen for the purpose of providing the respondent with an opportunity to make an application under § 242.17 be granted if respondent‘s rights to make such application were fully explained to him/her by the immigration judge and he/she was afforded an opportunity to do so at the hearing, unless circumstances have arisen thereafter on the basis of which the request is being made. The filing of a motion under this section with an immigration judge shall not serve to stay the execution of an outstanding decision; execution shall proceed unless the immigration judge who has jurisdiction over the motion specifically grants a stay of deportation. The immigration judge may stay deportation pending his/her determination of the motion and also pending the taking and disposition of an appeal from such determination.
What, then, is the meaning of “the requirements of
§ 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases—(1) When filed by affected party—(i) General. Except where the Board has jurisdiction and as otherwise provided in 8 CFR parts 210, 242, or 245a, when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision....
(ii) Jurisdiction. The official having jurisdiction is the official who made the latest decision in the proceeding unless the affected party moves to a new jurisdiction. In that instance, the new official having jurisdiction is the official over such a proceeding in the new geographical locations.
(iii) Filing Requirements—A motion shall be submitted on Form I-290A, and may be accompanied by a brief. It must be—
* * *
(iv)(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because:
* * *
(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.
The “requirements” that § 242.22 incorporates by reference to § 103.5 are the “Filing Requirements,”
Part 103 is entitled “Powers And Duties Of Service Officers; Availability of Service Records.” Part 103 goes on to discuss the duties of the Deputy Commissioner, the General Counsel, the Regional Counsel, the Directors of Congressional Relations, Public Affairs, and Internal Audit, the Executive Associate, Associate, and Assistant Commissioners, the Director of Asset Forfeiture, the Director of Administrative Appeals, the Director of the National Fines Office, the Service Center Directors, the Regional and District Directors, the Officers in charge, the Asylum Officers, the Director of Security, the Director of Equal Employment Opportunity, and the Directors of Administrative Centers among others.
To recapitulate: The attempt of the INS to invoke § 103.5 to permit reconsideration by the Seattle IJ is contrary to law for two reasons. As § 103.5 explicitly prescribes, it does not apply “where the Board has jurisdiction and as otherwise provided in 8 CFR parts 210, 242 or 245a.” As we have seen, it is explicitly provided in § 242.22 that reopening is to be done by the Immigration judge who “had made a decision.” Words could not be clearer as to where jurisdiction lies. As we have seen, no one would pretend that § 103.5 gives jurisdiction for reopenings by the Board. Neither does it provide jurisdiction for reopenings by an Immigration judge.
The second reason the contention of the INS is wrong is that it treats immigration judges as Service officers by reading “official” in § 103.5(a)(ii) to include immigration judges. That is not only a confusion of functions, but it is a serious derogation from the independence and impartiality with which those invested with the title and responsibility of judges must exercise their judicial office. As immigration judges are not Service officers, their decisions to reopen or not cannot be regulated by provisions directed to decisions of district directors, asylum officers, and other personnel of the Service office. We do not suggest for a moment that Service officers are not expected to apply the law fairly, but they properly take directions from their superiors. The immigration judge is expected to follow binding precedent but in application of the law is expected to act justly as a judge. That expectation necessarily implies an independence of superiors and an impartiality in regard to the litigants very different from that of a Service officer. We cannot amalgamate the judge to the Service officer without eroding the statutory scheme set up by Congress to protect rights precious to those moving through the asylum process that a generous nation has opened to those fleeing persecution.
We cannot remake the regulations the INS has made in order to cure a gap caused by a change in venue. In a field where technicality sometimes seems more important than justice, the technical requirements for jurisdiction must be kept. Section 242 has now been repealed so that its meaning is of no great significance for the future. 62 Fed.Reg. 10312, 10327 (1997). But it is significant for the future to insist that jurisdictional requirements be observed and to maintain the sharp distinction between Service officers and those entrusted with the impartial administration of justice.
Suppose a federal district court in Sacramento issues an injunction in a labor dispute. Two months later the party that has been enjoined goes to the federal district court in Los Angeles and persuades that court that the injunction was erroneously issued. When the objection is made that the second court has no jurisdiction, the answer is given that a decision of the National Labor Relations Board embraces both Sacramento and Los Angeles, so that the federal district court in Los Angeles has jurisdiction to correct the error of a federal district court in Sacramento. The answer is so improbable as to be outrageous. Something analogous has happened here. Without jurisdiction an immigration judge in one city has corrected the decision of the only immigration judge with authority to make the correction.