Ekasinta v. AshcroftEkasinta v. Ashcroft
Petitioner Paula Sharon Ekasinta seeks judicial review of a final order of removal. The immigration judge (IJ) denied each of her requests for various forms of relief. The Board of Immigration Appeals (BIA) affirmed without opinion, leaving the IJ’s opinion as the final agency ruling. Because each of Petitioner’s requests was
I. BACKGROUND
On June 10, 1998, Petitioner, a native and citizen of Indonesia, entered the United States at Los Angeles, California. She was initially authorized to stay in this country as a nonimmigrant visitor until November 9, 1998. Her authorization to stay was extended at least until October 19, 2000, and possibly until a later date; in any event, it is undisputed that she remained in this country after her authorization to stay had expired.
On February 16, 2000, while in the United States, Petitioner gave birth to a child, Esther Cоrdelia. Glenn George Bourdon, Jr., a United States citizen, was the child’s father. Bourdon and Petitioner were married on May 28, 2000. Petitioner testified that a friend of hers congratulated her at the wedding reception on becoming a “United States national” on account of her marriage to a United States citizen.
On April 20, 2000, before the wedding, Bourdon had been arrested for physically abusing Esther. On May 4 an Oklahoma state court issued an emergency order transferring custody of Esther to the Oklahoma Department of Human Services. The next day the state petitioned the court to terminate Petitioner’s parental rights because of the physical abuse.
A jury trial was held in January 2001. The jury returned a special verdict finding that Petitioner had not herself harmed Esther but had “inflicted chronic abuse, chronic neglect, or torture” on Esther by failing to protect her “frоm physical abuse that is heinous or shocking.” R. at 271. The jury concluded that it was in the best interests of Esther to terminate Petitioner’s parental rights, and the court entered judgment on the verdict. Bourdon was eventually convicted of physically abusing Esther and sentenced to prison.
Meanwhile, on August 29, 2000, in connection with new employment at a Payless Shoe Source store, Petitioner completed an 1-9 employee-eligibility-verifiсation form, checking a box labeled: “I attest, under penalty of perjury, that I am ... [a] citizen or national of the United States.” R. at 487. That was when her immigration troubles came to a head. On October 28 the INS charged Petitioner with remaining in the United States after her authorization to stay had expired, in violation of INA § 287(a)(1)(B),
At a December 11, 2000, hearing before the IJ, Petitioner conceded that she was removable for remaining after her authorization had expired and for failing to maintain nonimmigrant status, but she contested the charge that she had falsely represented herself as a citizen. She sought cancellation of removal and аdjustment of status to lawful permanent resident under three statutory provisions: INA § 240A(b)(l),
Petitioner claimed eligibility under the third provision,
We note that Petitioner also sought voluntary removal if she was denied cancellation of removal.
See
INA § 240B(b),
The IJ held several further hearings and issued an oral decision on August 19, 2002. He first decided that the 1-9 form sufficed to support the charge that Petitioner falsely reрresented herself to be a citizen. He said, “To the general public, there is no distinction between being a citizen and being a national,” and found Petitioner’s testimony that she had believed in such a distinction “patently unbelievable[,] ... unconvincing and false.” R. at 117-18. Accordingly, he held that Petitioner was removable under
The IJ indicated that this conclusion made Petitionеr ineligible for the statutory relief that she had requested. In any event, the IJ added that even if Petitioner were eligible for these forms of relief, he would deny her applications for them “as a matter of discretion.” R. at 123. Each of the provisions on which Petitioner relies only
permits
the Attorney General to grant relief; none requires that he do so.
See
On August 23, 2002, Petitioner appealed the IJ’s decision to the BIA. On January 15, 2004, the BIA affirmed without opinion. The IJ’s opinion thus became the final agency determination.
See Yuk v. Ashcroft,
II. STATUTORY LIMIT ON JURISDICTION
We have jurisdiction over petitions for review of final orders of removаl,
see
The Government assumes that this limitation applies only to judgments resting on discretionary grounds, and Petitioner unsurprisingly does not contest this interpretation. Although the matter is not without doubt, we need not resolve it in this appeal because even adopting the Government’s assumption, we lack jurisdiction.
See Morales v. Ashcroft,
We recognize that one of the grounds relied upon by the IJ was not discretionary — the denial based on Petitioner’s having falsely claimed citizenship. But if there are two alternative grounds for a decision and we lack jurisdiction to review one, it would be beyond our Article III judicial power to review the other. Absent authority to review the discretionary ground, any opinion of ours reviewing the nondiscretionary ground could not affect the final order’s validity and so would be advisory only.
See Pub. Serv. Co. of Colorado v. United States EPA
Nevertheless, there remains a challenging question to resolve before we can conclude that we lack jurisdiction. Does the IJ’s exercise of discretion defeat jurisdiction if the actual (but unexpressed) ground for the BIA’s summary affirmance was the IJ’s alternative nondiscretionary ground?
III. DISCUSSION
Petitioner contends that we must look to the grounds for the BIA’s affirmance without opinion, not the IJ’s opinion, in determining whether we have jurisdiction. And bеcause the BIA does not state these grounds when it affirms without opinion, Petitioner argues that we must remand to the BIA for clarification of whether it affirmed on a nonreviewable ground.
We disagree because remanding would be inconsistent with the governing regulation and this regulation is neither inconsistent with the statutory provision on jurisdiction,
A. Lanza v. Ashcroft
Petitioner relies on
Lanza v. Ashcroft,
First, Lanza asserts that the grounds on which a final order of removal rests, and hence on which the right to review in our court depends, are the grounds that caused the BIA to affirm the order. “If the BIA rejected the IJ’s [nonreviewable] finding and affirmed on the [reviewable] merits, then Lanza has a statutory right to have a federal court review that decision” — that is, the decision on the reviewable ground on which the BIA affirmed. Id. at 928.
Second, Lanza asserts that the right to judicial review is an interest of which an alien may not be deprived without due process of law. Thus, when the BIA does not state whether it has affirmed on reviewable grounds only, due process requires that the Court of Appeals either assume jurisdiction or remand to the BIA for clarification lest it unwittingly deny the alien the right to review that she would have enjoyed had the BIA affirmed on a reviewable ground and said so. Id. at 928.
Third, Lanza chose remanding rather than assuming jurisdiction because proceeding without remand risks the issuance of an advisory opinion that “would have no effect on the judgment” if it turned out that the BIA rested its decision on a non-reviewable ground. Id. at 929; see id. at 928-32 (expressing a concern to preserve “the general presumption against federal court review” and recognizing that “federal courts are courts of limited jurisdiction”).
We respectfully disagree. We find no right to judiciаl review in either the governing regulation or
B. Administrative Appeal Process
The Attorney General is “charged with the administration and enforcement of ... laws relating to the immigration and naturalization of aliens.” INA § 103,
The BIA is wholly a creature of regulation. It is not mentioned in the United States Code. It is simply an instrument through which the Attorney General exercises the powers conferred on him by the INA. Its organization and authority are set out in
When an appeal is taken to the BIA, it may be summarily dismissed by a member
The BIA is to affirm without opinion when (1) “the result reached in the decision under review was correct”; (2) “any errors in the decision under review were harmless or nonmaterial”; and (3) “[t]he issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation,” or “[t]he factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion.”
When the BIA affirms without opinion, the decision below is “the final agency determination,”
An order affirming without opinion, issued under аuthority of [8 C.F.R. § 1003.1(e)(4)(h) ], shall not include further explanation or reasoning. Such an order approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board’s conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial.
Id.
This provision plainly bars a BIA member who issues an affirmance without opinion from explaining the reasons for the affirmance, even though they are different from those stated by the IJ. Nowhere does the regulation provide for further clarification on -remand from us; indeed, to order the BIA to explain itself, even to the extent of stating whether it affirmed on a reviewable, nondiscretionary or nonreviewable, discretionary ground, would contradict
C. Statutory Validity of the Regulation
We see no reason for holding that the operation of this regulation conflicts with
Petitioner and
Lanza
appear to assume that the decision from which jurisdiction is determined must be the decision by the highest tribunal in the hierarchy that considers the matter. Why that must be so is unclear to us. The Attorney General, for whatever reason, may prefer to stand his ground on the decision of the IJ who heard the case rather than the single member of the BIA who reviewed the record. We have already held in
Yuk,
To be sure, Petitioner’s contention is not the same as Yuk’s — the issue here is not the merits of the removal order but our jurisdiction to review it. But if there is no statutory bar to the regulation’s requiring that we look to the IJ’s decision (rather than the BIA’s unexpressed reasons) in reviewing the merits of removal (which is the alien’s fundamental concern), we fail to see how the statute bars the regulation
An instructive analogy arises out of Supreme Court practice with respect to jurisdiction to review state-court decisions. The Supreme Court may review state-court decisions interpreting federal law.
See
But which state-court decision must rest on independent and adequate state-law grounds? When the state’s highest court has issued an opinion, that decision is undoubtedly the relevant one. Occasionally, however, the opinion under review is by a lower court because the state’s highest court declined to grant review. In denying review, the high court might have thought the decision correct on state-law grounds only, on federal-law grounds only, or on both, just as the BIA in our case might have affirmed without opinion on discretionary grounds only, on nondiscre-tionary grounds only, or on both. And, analogously to the situation in our case, the high court’s silently letting stand a lower-court decision that rests on state-law grounds beсause the high court thought there was an alternative federal-law ground for the result reached could be thought to be a circumvention of the Supreme Court’s jurisdiction. To fix the problem, just as Petitioner suggests, the Supreme Court might remand such a case to the state’s highest court to clarify whether it had denied review because it thought the lower-court decision correct on state-law grounds, or for some other reason.
That, however, is not Supreme Court practice; instead, the Court simply reviews the lower-court decision.
See Illinois v. Rodriguez,
A BIA affirmance without opinion is the functional equivalent of a denial of certio-rari, because the lower tribunal’s decision is the decision of the agency (the counterpart of the state judiciary), and the reasons for affirmance (the counterpart of denial of certiorari) are unknown and unknowable,
see Tsegay,
We see nothing in the INA that would forbid the Attorney General from establishing an administrative-appeal scheme that included a certiorari-like process for denying review by the BIA. Indeed, as previously noted, the statute contains no rеference whatsoever to the BIA or administrative appeals. Even if affirmance without opinion is not formally identical to a certiorari process, its operation is essentially the same and likewise creates no conflict with the statutory scheme. Moreover, to adopt Petitioner’s view is tantamount to saying, contrary to our decision in Yuk, that affirmance without opinion is prohibited by the statute. After all, if Petitioner is correct that our jurisdiction must be determined on the basis of the BIA’s decision, we could never hear an appeal of a removal hearing without first remanding to the BIA for an explanation of the affirmance, because the BIA may have rested its decision on a nonreviewable ground, even though the IJ’s grounds for denial were reviewable.
D. Constitutionality of the Regulation
Petitioner’s constitutional due-process challenge can be readily disposed of.
Lanza
found a due-process problem only because the affirmanee-without-opinion procedure interfered with what it held to be a statutory right to review the BIA’s decision. But we disagree that there is such a statutory right. As we have explained, the statutory right to judicial review of a removal order is simply the right to review of the decision of the Attorney General, and the Attorney General can designate his decision as being that of the IJ just as well as he can designate it as being the BIA’s decision. Thus, there could be a denial of due process only if there were a constitutional right to a decision by the BIA. But, of course, there is no right even to an appeal to the BIA.
See Yuk,
The only due-process question is whether the BIA’s practices accord an alien being removed from this country due process of law. We hold that thеy do. The constitution requires no more than a fair administrative proceeding, which Petitioner received in this case. Indeed, the Supreme Court has held that judicial review of the Government’s expulsion of aliens is entirely a matter of legislative grace.
See Carlson v. Landon,
IV. Conclusion
Because the IJ denied relief on discretionary grounds, we DISMISS the petition for lack of appellate jurisdiction.