*1 Petitioner, HUSSAIN, Afzal Attorney GONZALES,
Alberto R.
General, Respondent.
No. 05-2350. Appeals, States Court
United
Fourth Circuit. 19, 2006.
Argued Sept. Feb.
Decided *2 below,
remand. For the reasons set forth deny we for review. I. 6, 2000,
On December a notice to appear Hussain, alleging issued to that he entered the United States at an unknown (J.A. April location on or about 1992. at 5.) The notice further averred that Hus- Jennifer Sheethel ARGUED: Va- sain was not paroled admitted or after Herndon, rughese, Virginia, for Petitioner. inspection, any nor did he have valid reen- Molina, II, Ernesto Horacio United States try documents. Id. Justice, D.C., Department Washington, 3, 2002, On October the immigration for ON BRIEF: Respondent. Joe W. judge request denied Hussain’s for relief Nesari, Nesari, Law Offices of J.W. (J.A. 23.) from removal in absentia. at L.L.C., Herndon, Virginia, for Petitioner. 26, 2005, January On years more than two Keisler, Attorney Peter D. Assistant Gen- order, after immigration judge’s Hus- eral, Division, Jocelyn M. Lopez Civil sain filed a motion to reopen with the Director, Wright, Assistant Immi- Office of (J.A. 31-58.) immigration judge. at Hus- Park, gration Litigation, Song E. Office of 1) sain claimed that absentia remov- Division, Immigration Litigation, Civil al order should be rescinded because his Justice, Department United States appear failure to at the hearing was due D.C.,
Washington, Respondent. 2) circumstances; exceptional the denial of relief under Against the Violence Women NIEMEYER, Judge, Before Circuit Act, in which he claimed that he was HAMILTON, Judge, Senior Circuit wife, by error; abused his first inwas FLOYD, HENRY F. United States 3) eligible he was now Judge District for the District South status to that of a permanent lawful resi- Carolina, sitting by designation. dent on the basis of a labor certification filed on his behalf his employer April on Petition published opinion. denied (J.A. 31-58.) at Judge majority opinion, FLOYD wrote the immigration judge denied the mo- in which Judge NIEMEYER concurred. reopen tion to for the reasons stated Judge Senior HAMILTON wrote a Department of Homeland Security’s dissenting opinion. (DHS) (J.A. 178.) response. at The DHS argued had that Hussain’s motion un- OPINION timely and that he did not excep- establish FLOYD, Judge. District (J.A. 150-51.) tional circumstances. at Hussain, Afzal a native and citizen of Hussain appealed Pakistan, petitions this (J.A. Court for review of judge’s decision to the Board. 174-76.) Immigration order of the Board of Ap- appeal While the was pending, (Board) peals denying his from the Hussain filed a motion to remand his case immigration judge’s (J.A. order which 186.) denied immigration judge. his motion reopen and disposed Hussain, of his According to his new wife had motion to only remand. Hussain’s chal- filed Immigrant Petition on his behalf. lenge (J.A. 187.) is to the denial of his motion to argued that his materially changed denying and remand the order relief. The circumstances had rehearing to a before Government admits that the Board failed that he was entitled specifically Hussain at- to refer to the motion immigration judge. Id. to re- contends, his motion to documents to mand. The Government howev- tached several remand, eligible er, *3 claiming that he was that the Board referenced the motion (J.A. comprehensive relief. immediate to remand when it discussed Hussain’s 186-238.) neglected The Government adjustment motion to to for reopen apply to the motion to remand. response to file of status. Board found that Hussain’s motion The Because Hussain’s motion was filed immigration judge’s order of reopen
to appeal pending, proper- while the was it is untimely. removal entered absentia ly a motion to classified as remand. See 8 259-60.) (J.A. at The Board further noted 1003.2(c)(4)(2005). Thus, C.F.R. Hus- seeking reopen “is also to that Hussain sain is correct his contention that the adjustment to for proceedings apply dispose specifically Board failed to of the to rescind required status. An alien is not motion to remand. deportation [the or her order under his an pursuing Act if he or she is applicable] supports finding The record relief, provided for new application that the Board’s reference to the motion to respondent no that there is evidence reopen was a reference to the motion Hus- required warnings” failing for received immigration sain filed judge. before M-S, 22 (citing Id. Matter I. appear. to above, motion, As noted that Hussain (BIA 1998)). The Board & N. Dec. 349 sought reopening a result of exceptional untimely, to be as well. found that motion him causing circumstances to be absent petition Id. at 260. This followed. hearing, from his an of status by because of labor certification filed his II. attorney and relief under the Violence limits his for re Hussain 247-55.) (J.A. Act. Against Women challenging disposition view initially The Board’s order referenced to remand. review the denial motion We argument exceptional that cir- of a to remand for abuse of discre motion cumstances were when he missed tion. Obioha v. 431 F.3d 259.) (J.A. (4th Cir.2005). hearing. immigration his abuses its above, however, As the Board discretion when it “fails to offer reasoned observed decision, re- distorts or dis found the motion for relief as that explanation important aspects untimely. of the alien’s to be Id. It continued regards quest INS, 989, 993 stating seeking claim.” Malhi v. 336 F.3d that Hussain “is also Cir.2003) (internal quotation adjust- marks reopen proceedings apply omitted). and citation not- ment of status.”1 Id. The Board also obligated under ed that alien is not
A. deportation some circumstances to have a pursuing if the alien is order rescinded argues erred (J.A. at 260 application motion to for new relief. failing to mention or address his the Board was the Board's the term "also" meant 1. The Government claims moving moving considering reopening implies use of the word ''also” it was reopening to consider to the motion to remand. It absentia order from the however, equally possible, use of labor certification. M-S, 22 I. & N. Dec. The (citing Matter Board’s failure to make reference 349).) response Government’s lack of a lends support to Hussain’s claim that the Board MS, petitioner sought Matter of neglected to consider the motion. immigration judge rescind the have the apply adjust- as to order of removal so Moreover, finding the motion ment of Id. The Board held that in status. untimely apparently refers to Hus- the order does not some circumstances reopen sain’s motion to filed before the Id. at have to be rescinded. immigration judge. That motion was filed years more than two after the case, noting after that an the instant judge’s A reopen decision. motion to must to be order does not have rescinded in be filed no than ninety days later after the *4 cases, certain the Board continued find- date of the administrative decision at issue. that, fact that ing despite the rescission is 1003.2(c)(2). § 8 C.F.R. parties The unnecessary, Hussain’s sometimes motion submitted, found, and have not we reopen untimely.2 to to seek new relief was either a comparable regulation for motions The of Board’s discussion whether rescis- to remand or an instance in which a motion sion is essential relates to Hussain’s mo- remand, to pend- filed while an tion reopen, which he did seek rescis- ing, was untimely. denied because it was sion, remand, rather than the motion to Accordingly, we find that the Board’s or- not specifically he did seek rescis- neglected properly der dispose of the Therefore, sion. based on the case citation motion to remand. order, in the fact that the Board re- ferred to the motion as one to reopen, B. referring to a instead of motion for re- mand, rescission, of discussion and the The Government contends that if the reopen fact that the motion to filed before Board failed to consider Hussain’s motion immigration judge sought adjust- remand, should, nevertheless, an this Court status, ment deny of we are convinced that the According for review. referring Government, Board was not to the motion to statutorily Hussain is disposed prohibited remand when it of the “motion receiving adjustment of reopen.” status country because he entered the ille- gally. agree. We addition, the Government did not op- pose General, Hussain’s motion to remand. Attorney Pursu- The discretion, in his ant 1003.2(g)(3), § to 8 if may adjust C.F.R. the Gov- of status an alien to that of response ernment does not file a to a a lawful permanent resident if the alien motion, it unopposed. is deemed An unop- inspected “was and admitted or paroled posed adjustment motion to remand for of into the United ...” States 8 U.S.C.A. may Erales, 1255(a) status § be remanded. In re (2000); Jean v. (BIA
A75-512-988,
475,
Cir.2006).
United
122,125.)
holding
reiterated the
circumstances in
stating
special
no
proceedings
reopen
A motion to
permitted
Thomas
court to
submitting
applica
purpose
“for the
in-
consider
issue
first
factual
accompanied by the
for relief must be
tion
stance.
and all
application for relief
appropriate
requires determining
The matter
8 C.F.R.
supporting
documentation.”
deciding
facts
facts
1003.2(c)(1).
prima
facie
To establish
found fall within a
term. And
status, Hussain
adjustment
as we said Ventura:
(1)
following:
he has
demonstrate the
must
status;
he
for an
applied
agency
bring
expertise
can
immigrant
to receive an
visa
eligible
matter;
it can evaluate
bear
*5
(3)
States; and
to the United
is admissible
evidence; it can make an initial de-
immediately avail
immigrant
visa
can,
termination; and,
so,
doing
in
it
application
him at
time his
able to
analy-
through informed discussion
1255(a) (2000); Onyeme
§
filed. 8 U.S.C.
sis,
determine
help a court later
(4th Cir.1998).
INS,
227, 231
v.
146 F.3d
leeway
its decision exceeds
prima
to make a
facie
Hussain has failed
provides.
law
because he
in his motion to remand
special
can find no
circumstance
We
that he was admissible.
failed
establish
justified
that
the Ninth
might
here
1182(a)(6). Accordingly,
8 U.S.C.
See
in
determination of the matter
Circuit’s
ineligible
that Hussain is
we hold
Ventura,
Thus, as in
the first instance.
that
relief
he seeks.
ap-
Appeals
should have
Court
this,
ordinary remand rule.
plied
In matters such as
the Court
generally empowered to conduct a
“is not
(internal
quota-
Id. at 1615
citations and
being
the matter
re
inquiry
de novo
omitted)
added).
(emphasis
tion marks
conclusions
viewed and to reach
own
Rather,
Thus,
con-
and Thomas
inquiry.
both Ventura
based on such
cerned,
au-
course,
appellate
court’s
part,
in rare circum
proper
except
stances,
in the first instance
thority
to review
agency
is to remand to the
fac-
by the Board.
tual issues not considered
investigation
explanation.”
additional
12, 16-18,
speak
did not
123 The
v.
537 U.S.
INS
courts have authori-
353,
(holding
appellate
whether the
Moreover, aptly observed exhibits the narrow set of circumstances Circuit, language Fifth requires Zhao, Ventura is no remand.” 404 F.3d and, thus, (footnote precatory, mandatory, omitted).6 re- at 311 necessary. mand is not always Zhao v. Finally, there is a “strong public interest Cir.2005) 295, 404 F.3d 311 bringing litigation to a promptly close as (“[Although language in Ventura is as is consistent with” a fair opportunity to strong, precatory. it remains The Court Abudu, claims. v. INS holding could have categorical- worded its 94, 105, 107, 904, S.Ct. L.Ed.2d 90 ly, and its failure to do so must be a (1988). This is particularly true cases decision.”) conscious this, “where, matter, such as general as a every delay advantage works to the stated, Simply ineligible Hussain is deportable alien merely who wishes to re for the relief he because seeks he is unable main in the United States.” INS Do prima to establish a facie case for the herty, U.S. adjustment of his legal, status. This is a (1992). L.Ed.2d 823 factual, such, not a conclusion.4 As remand this matter to the Board for fur significant any likelihood is that fur- ther consideration would serve no useful ther decision the Board on this issue purpose. Justice, Zhong Dep’t v. U.S. is unfavorable to Hussain will be (2d Cir.2006) 461 F.3d (stating brought Court, again. this The deter- that an agency does error not warrant mination that we today have made is inev- when is clear from the record Hence, itable on remand. there is no legal “that the same decision is inevitable on reason for delay. further remand, or, short, whenever the review ing panel agency confident *6 III. would reach the upon same result a recon Accordingly, we deny petition Hussain’s errors”) (citation sideration of cleansed for review. omitted). PETITION DENIED.
Because the result of a remand to the Board is a foregone conclusion such that HAMILTON, Senior Judge, Circuit remand would amount to nothing more dissenting: than a formality, mere we find that the Ventura “rare circumstances” exception I have two main points of disagreement applies.5 is, That court, like the Zhao majority First, with the opinion. I dis- cautiously “[w]e conclude that this agree case majority with the opinion’s failure to questions We review law de novo. Deko this is triggers the sort of case that the "rare ladenu v. 459 F.3d exception circumstances” found in Ventura. Cir.2006). reviewing 6."A court can no doubt find some 5. The neglected dissent afforded, that we deficiency observes process in the find- any cite fact, case in a ings which federal court of legal analysis nearly or the any appeals has refused remand a case to agency adjudication. The courts ... distin- Board under guish similar circumstances subse- trivial or harmless error from error quent to Ventura and but then requiring fails to reversal or remand for further con- any reference case similar to the one at bar in Guendelsberger, sideration.” John W. "Judi- which an in fact court remanded the Agency cial Deference to Decisions in Remov- case. We interpret the absence of Proceedings ", similar al Light of INS v. Ventura cases as further support opinion (2004). our Immigr. 18 Geo. L.J. ambigu- Decision is Board’s Final for issuance to the this case remand view, point. ous on my clarifying order. of a (the 14, 2005 decision Board’s November majority opinion’s disagree with I Decision) sufficiently am- is Final Board’s the indiscernible choice to discern whether regarding biguous upon ruled Hussain’s the Board whether motion July Hussain’s upon ruled course, prudent to Remand. Motion Remand) (Hussain’s Motion to remand with wholly ambiguous situation this for review Hussain’s granting confronted, tois ourselves we find Board with remanding instruc- the Board with the case to order is clarifying to issue instructions clarifying to issue the Board tions Second, assum- mandated. required I instruct Specifically, would order. rule not Board did ing arguendo, upon it had ruled clarify whether Board to as the to Remand Motion Hussain’s on Final in its to Remand Hussain’s Motion concludes, disagree I with majority opinion denying the second-mentioned Decision address decision to majority opinion’s ruled, I If had so reopen. it motion the first the merits on motion such rea- clarify the Board instruct would majority addressing, In so instance. not ruling. If had for so or reasons son authority. review oversteps our opinion rule the Board to ruled, I would instruct so dissent. respectfully I Accordingly, its reason express motion and on the ruling.
reasons so I. II. points of my addressing detail Before disagreement point of main My second opinion, majority with the disagreement ma- concerns majority opinion with the for issu- to be rebuked deserves
the Board to address decision jority opinion’s we, as the in which decision ing a final to Remand. of Hussain’s Motion merits discern court, readily cannot reviewing majority opinion concludes After the par- ruled the Board even Mo- not rule on the Board did Immi- it. pending before ticular motion takes Remand, majority opinion tion itself, complicated law, in and gration such extraordinary step addressing we should enough that *7 confusing and in first merits the instance. motion on the appel- the federal into debate thrown be opinion, remand majority According the action the regarding what level late in- in the first ruling a Board for to the actually took. be- purpose no serve useful would stance record, is cause, upon the based of dis- point main my first Turning to prima a to establish unable facie a majority opinion, the with agreement majori- Notably, the adjustment status. the and of the record reading careful its that to stress pains ty opinion takes the ma- shows that Decision Board’s Final to estab- unable Hussain is conclusion that conclusion opinion’s jority case for prima lish a facie Hussain’s Motion dispose of failed factual, conclusion.” legal, not “is status or mere guess just a is reasoned Remand at 158. Ante really do The truth is we speculation. deci- majority opinion’s the Significantly, Board intended not know of Hussain’s the merits in sion to address to Remand Motion dispose of first instance in the to Remand Indeed, Motion govern- Decision. its Final as re- rule ordinary remand violates argument at oral candidly conceded ment 160
cently
applied
Thomas,
and
in
reiterated
the Su
In
Supreme
Court ad-
preme
Court’s
decisions
dressed whether
the Ninth Circuit had
Ventura,
12,
353,
INS
537 U.S.
erred in
considering,
instance,
the first
(2002)
curiam)
(per
154
272
L.Ed.2d
and
given
whether a
group
persons
fell with-
Thomas,
Gonzales v.
statutory
“particular
term
social
(per
S.Ct.
L.Ed.2d 358
101(a)(42)(A)
§
group” under
of the Immi-
curiam).
gration
Nationality
(INA),
and
Act
1101(a)(42)(A),
U.S.C.
when the Board
Ventura,
the Ninth Circuit had ad
formally
had not
question.
considered such
rejected an argument by
dressed and
Thomas, 126
S.Ct.
government
political
Applying
conditions in
rule,
ordinary remand
the Court
improved
point
Guatemala had
held that
the Ninth Circuit
political persecution
longer likely
again
was no
had
usurped Guatemala.
relevant
U.S.
administrative agency’s
role
S.Ct. 353. The Board had not
making
asylum
addressed
basic
eligibility decisions.
Supreme
Thomas,
the issue.
Id. The
Court re
161 nothing There is Ante at 158-59. Thomas both States. and in Ventura remanded of instant the circumstances In in the aspects. legal and factual involved “rare presents this case suggest is- which Ventura, circumstances” “changed the from exception justifying review circumstances” the Board’s only for not called sue Ventura, rule. 537 record, ordinary remand for the the but in the evidence of example, facts, For S.Ct. 353. to the 123 the U.S. at of law application Board’s on conceded 16-17, expressly Ventura, has not U.S. 537 for ineligible the facts that he is law to us the before of application Such in- to in his Re- conferred he seeks Motion Board’s the the relief play brings immi- field of in the expertise mand. terpretative Aguirre-Aguirre, INS v. law, gration of the troubling aspect the Perhaps most L.Ed.2d 415, 425, 119 S.Ct. U.S. tell cannot is that one majority opinion that Chevron deference (holding authority legal reading what on the statuto- Board based applies its refusal based majority opinion the Congress laid out power of ry allocation fact, the Board. this case remand 1003.1(d) also 8 C.F.R. INA); see in the single cite a does majority opinion not the Board, precedent deci- (“[T]he through appeals of a federal court case in guid- and uniform clear sions, provide shall the Board a case to to remand has refused immigration Service, the ance post -Ventura circumstances under similar prop- on the general public and the
judges,
and Thomas.
administration
and
interpretation
er
made
summarize,
To
regulations.”).
implementing
Act and
and Thomas
quite clear Ventura
in Thomas
remanded
the issues
Similarly,
le-
court should
federal
of the evi-
review
Board’s
called
law
immigration
factual issues
gal and
the Board’s
record as well as
in the
dence
by the Board
previously
not
addressed
ex-
interpretive
of its conferred
exercise
in-
first
for resolution
immigration law.
the field
pertise
”
in “rare circumstances....
except
stance
(“The agency
Thomas,
S.Ct.
er