Naim Butros v. United States Immigration and Naturalization Service

by which only means use ily acted completion reached, the be could goal that certificates. false “the that insists rightly defense commission essential intent

criminal time at the exist must crime Fox, States United act.” criminal L.Ed. certifications false were acts criminal speci- than bags containing fewer of boxes ordering the GSA contract. fied of boxes shipment production be they must knowledge certificates, QAMA signed accompanied necessarily would certificates that the requisite evinced false, Fairchild intent.

criminal

AFFIRMED. Helterline, Hribernick, Black R.

Paul OR, petitioner. Portland, for Immigra- McConnell, Office M. David DC, Washington, Litigation, spondent. Director, Deputy Filppu, Lauri Steven Petitioner, BUTROS,

Naim Washing- Litigation, Immigration Office respondent. DC, ton, AND IMMIGRATION STATES UNITED SERVICE, NATURALIZATION Respondent. Judge, WALLACE, Chief Before: 91-70372. No. HALL, BEEZER, REINHARDT, CANBY, O’SCANNLAIN, NOONAN, BRUNETTI, Appeals, Court States United FERNANDEZ, LEAVY, TROTT Circuit. Ninth Judges. 21, 1993. Jan. and Submitted

Argued Judge: NOONAN, Circuit 9, 1993. April Decided aof review petitions Butros Naim Ap- decision to re- dismissing his (Board) peals deportation. of waiver open a denial remand review petition grant proceedings. further BACKGROUND States United entered Butros Naim old. six He February 1975. entry was time at the His status is, resident, one a lawful 1143 having having the “status of been lawfully- lation the Board was entitled to dismiss privilege accorded residing perma- summarily whenever party “the concerned nently in the United States as an immi- specify fails to the reasons for appeal his grant in accordance the immigration Form I 290A.” laws, having status not changed.” got Butros lawyer new applied 1101(a)(20)(1988). U.S.C. § stay deportation with the district di- Since the entry, date of his Butros has application rector. The was denied on Jan- continuously lived in the United States. uary 1991. mother, father, brothers, His and sister January 9,1991, On Butros filed with the States, also pres- live United and he Board a styled Reopen “Motion to ently family resides at home with his and is and Reconsider.” This opening motion’s gainfully employed. sentence stated that he moved the Board In drug 1987 he was convicted of- “to deportation his proceeding and Oregon, Immigration fense in and the and to summary reconsider dismissal” of his (INS) Naturalization Service moved to de- appeal. He offered new evidence and also port hearing him. At the he conceded de- claimed ineffective assistance of counsel. portability and moved for re- He stay asked for a deportation. lief under section The Board denied stay on January 1182(c), and Naturalization 8 U.S.C. § 23, 1991. Butros petition then filed a which reads as follows: corpus habeas in the United States District lawfully Aliens admitted for Court for the District Oregon. April On temporarily who proceeded residence 23, 1991, the court reversed the district abroad voluntarily and not under an or- director and the Board and ordered the INS der deportation, who are to continue Butros existing on his bond. turning to a unrelinquished lawful domi- The district court observed it could cile of years, may consecutive be readily see that Butros’s claim was “not admitted the discretion of the Attor- By refusing frivolous.” grant stay, ney General.... the Board and the district director had act- Under case law be “to effectively petitioner’s ed foreclose extended not seeking aliens to re 3.2, right under 8 C.F.R. 3.8 to move to §§ turn to the United States also to resi but reopen this case.” The district court con- dent Tapia-Acuna INS, aliens. cluded that the stay denial was an Cir.1981); Francis v. abuse discretion. (2d Cir.1976); 272-73 Silva, May (BIA Matter 16 & N On gave Dec. 26 the Board 1976). decision Butros’s motion to to reconsider. The Board held that 26, 1988, an oral decision May against Butros “became immigration judge found that Butros had administratively final at the time of our not been rehabilitated denied discre- 7, 1990, November decision in this case.” tionary relief. He entered an order “that point The Board continued: “At that respondent deported Unit-, from the respondent lost his per- as a Syria.” ed appeal An States manent resident of the United States. He Board was filed on day. the same longer eligible therefore no for a section 7, 1990, On appeal November Butros’s 212(c) waiver.” The Board cited Gonzales summarily dismissed Cir.1990) F.2d 236 as con- pursuant to 8 3.1(d)(l-a)(i). C.F.R. The trolling. According decision, to this Butros Board observed that it had received no statutory fitted the description of written brief statement of kind from immigrant whose status had not Butros represented he was changed. The counsel. Board concluded that it had meaningfully been petitioned informed the ba- Butros this court for review. appeal. sis of his regu- Under the invoked assigned panel requested an en banc subject of person “a only as voted then hearing, which subsequent grant. Id. States.” United departure regu- doubt, alter could, no ANALYSIS the dissent uncertainties the meet to lation determi Board’s the novo de “We review envisages. regarding questions legal purely of nation and the of requirements the regula- present the of aspect salient The INS, 971 Abedini Nationality Act.” reconsider to right to move is that the tion Interpreta Cir.1992). 188, 190-91 by refer- limited in nowise is reopen toor not hav status “such language the of tion the finality of administrative the to ence of definition found changed”, ing Board’s If the decision. initial Board’s residence, 8 U.S.C. permanent lawful the as to final were decision original ques legal purely a (1988),is 1101(a)(20) § relief, for petitioner of the by the decided question It was the tion. such be would there of course then de Board’s answer the review Board. for reopening or thing as reconsideration novo. round. first the lost on who petitioner the on regulation a has issued Board do Board’s as say, the But to C.F.R. reopen, 8 or to to reconsider motions round second may you have say, that Most a footnote.1 3.2, below out says set Board say, as the to time the same at title, the are our for round, pertinent is a second may not have here, you reconsideration,” followed or “Reopening contradiction. engage to its own on Board the provision by the self- present Board’s genesis any reconsider or “reopen may motion be Matter appears to position contradictory or “reopening for provision case,” 1981). In (BIA N Dec. Lok, 18 I & Com- of that request at reconsideration for qualify began to alien an who case Also party.” any affected or missioner 1971 was residence lawful permanent denying explicit statement is the relevant in 1973 offenses narcotic convicted any form “for reopen to opportunity an peti- Subsequent in 1976. deported ordered that the “appears it if discretionary relief” Circuit. Second to the twice travelled tions was relief such apply right to alien’s Board, understand- 1981 decision In its opportunity himto fully explained it question vexed, recast ably a little at the him afforded was therefor apply to from Second remand on received had sought is relief unless hearing former once petitioner, that the and decided have which of circumstances the basis on Board, by the deportable found he was hearing.” to subsequent arisen counted time not accumulate could barrier An absolute (1992). 3.2 C.F.R. at 104-05. Id. residence. permanent is created reconsider or reopen moving to hearing unless the former him forded reopen or motion own The Board 1. circumstances sought the basis has rendered relief it which any case in reconsider hearing. A subsequent any arisen or reconsideration which Reopening decision. case in Board, by to reconsider reopen been made or motion a decision motion person by Commissioner behalf requested or in made whether be not shall Ser- officer duly proceedings authorized any deportation subject other or vice, who decision, by the party affected by the the United or departure subsequent to his the Board. only upon written be shall States the United departure Any States. deportation reopen in Motions pro- subject of person appears to the unless granted be shall not making aof motion occurring after the ceedings sought offered is to be that evidence consti- shall reconsider a motion to not could available and was material For motion. of such a withdrawal tute the former presented at discovered have been section, made any final decision purpose of this any motion hearing; shall nor date effective prior Commissioner opportunity to affording alien purpose of any within respect case Act be form apply for (2), 3.1(b)(1), in § enumerated of cases classes right to alien’s appears that the granted if regarded a decision (5) be (3), (4), or shall to him fully explained relief was apply such 3.2§ 8 C.F.R. the Board. af- apply therefor opportunity to and an proceedings began. Once the Board had decided that he was tation Id. at 239. We deportable, changed emphasized his status and he no policy as a reason that “if Sec- “lawfully fit the definition of one were persons available to after permanent final, admitted residence” inas- an order of is made then specified applications much as that definition “such sta- would never end. An Id.; having changed.” tus not permanent U.S.C. alien who was a lawful resident 1101(a)(20)(1988). deported would, and is then if argument Gonzales’s adopted, eligi- The Board noted that to let an alien ble for indefinitely, waiver even af- retain his status as a lawful being deported.” ter Id. at 240. “throughout judicial proceed- resident ings” “encourage spurious appeals We now overrule fallacy Gonzales. The courts, solely purpose made for the of Gonzales belief that what is final accumulating of eligibili- more time toward for purposes certain administrative is final 212(e) ty for relief.” The Board purposes. also for all The Board in itself Mat- noted that to hold that an alien under implicitly a ter Lok conceded that such a of comprehensive final order of was still a lawful notion of finality was unten- permanent resident led to results that were able because it if conceded that a circuit “inherently incongruous” Board, such as the alien court petitioner’s reversed the the having right designated to accord a permanent status of residence preference long relative a visa so as the Lok, would return. Matter 18 I & N country. Finally, alien remained in this words, the Dec. at 107. other the Board relatively Board noted that “in recognized those rare that when review ex- ists, instances where the court determines that what looks like final a status can well erred,” the Board the reversal of the Board turn not to be a final out status. nullified its order and therefore restored equally It is evident that the same con- permanent the alien’s lawful resident sta- clusion must right be reached when a tus. right move for reconsideration or a to move by Matter Lok was reopening affirmed the Sec- for with the Board exists. The Circuit, (2d fact, ond Lok v. 681 F.2d may, in or reconsider. Cir.1982), but, as the Second later It has done so. Vargas, See 938 F.2d at noted, grounds.” “on Vargas narrow practice, v. 362. Since the Board’s own (2d Cir.1991). 938 F.2d regulation, well as its own establishes that that, purposes ruled for purposes calculat- by another look the Board “[W]e ing seven-year requirement, final, Lok’s sta- the status is not there can be no permanent tus as a pretense resident ended he anything simple so as one all- appeal Immigration Judge’s failed to embracing notion finality. crys- What is finding deportability.” Id. at 361. long tal-clear is that as may as the Board case, reconsider or the status of case, however, In our own Gonzales we petitioner in purposes that case for expanded reasoning of the Board’s deci- section finally has not been sion Lok and held that the Board was determined for of action right denying Gonzales’s motion to re- Board. id. at 361. See The Board erred in open application a for relief be- determining the statutory language that statutorily ineligible cause she was once change of applies to an alien whose had appeal decided her initial reconsidered, appealed, case or re- against upheld her and opened. regulations The Board’s on recon- Judge’s deportation. Gonzales, order of reopening sideration and do not construe 921 F.2d at 238. We did so statute, reg- but the existence of these issue of did not relate to the accu- ulations creates the situation on which the resident, mulation of credit as a since Gon- statute, construe, operates. which we zales had entered country when she years was seven old satisfied the expressed and had As to the concern by Gonzales seven-year requirement depor- long before that applications there will be no end to reconsid- can be any issue district is effec- concern relief, that has become after long upset that ered and regulation Board’s by the met

tively Moreover, even 60(b). Fed.R.Civ.P. reopening final. reconsideration petition no final, can be decisions, long since person a criminal in behalf “by or made may be proceedings. corpus habeas proceed- overturned subject iswho wisdom in its INS the Similarly, departure his ings subsequent plain words regulation whose adopted 3.2 C.F.R. § States." United reopen- subject to any decision that state concerns us before case Because the exception single time, ing at Board, before petitioner aof the status 8 C.F.R. opinion. See noted own Board’s acting under decision Thus, final BIA’s 3.2. reopen- reconsideration asking 212 relief section entitled is not person quarrel case, ing of decision any other just reopened can be and inter- was affirmed as it Matter ofLok say that course, is not Of can be. areWe Circuit. Second preted convincing make will person particular to accumu- alien ceases deciding when say just to reopening; argument of lawful toward credit late at the precluded is not person token the same By residence. an alien outset. of deciding the not we are for subject to consider so, not need being we this All of a relative. priority visa giving regarding Chu arguments presented issues the reach Cir.1989), not a case doWe 777, 780-81 reopen- and/or is, reconsideration final- Butros species of involved —that Rather, we remand this ing. appealing purpose the ity for questions. of these determination cases consider our need Nor we court. years of seven accrual case the regarding the and is GRANTED Petition going process appeal the not incon- while residence is REMANDED See, e.g.,Avila-Murrieta forward. opinion. with sistent Cir.1985). Those 733, 735 Judge, whom with FERNANDEZ, in words same the precisely with cases deal join, Judges, HALL, Circuit deal we BEEZER that statutory provision the concurring: exceedingly might be Although here. could have those words say that and write difficult opinion majority I concur than purpose meanings our do- reasons different my explicate separately to Avila-Murrieta, need not we they had ing so. is hold to do we need All the issue. discuss majority holds it, the I understand As INS has regulations the BIA is not sense cosmic “finality” in some that adopt wishes now INS If the adopted. truly we must Nor issue here. really is avail- route that regulations, different residence permanent what decide it. able to in 8 U.S.C. used phrase that as means U.S.C. in 8 defined 1182(c) and to follow BIA have short, not the does simple is a Rather, issue 1101(a)(20). I changed? are until of whether one; question it is a procedural Thus, I concur. yes. answer is think can be BIA a determination time, re- reconsidered opened whom Judge, with TROTT, Circuit As involved. issue type gardless joins, Judge BRUNETTI, Circuit I do “yes.” says, majority it the I see dissenting: answer, so shocking a radical see that alien, Butros, resident agree. Naim of cocaine possession guilty to pleaded finality is somewhat all know ago. On six 19, 1987—almost July law, is in nature —at as it concept fluid Cause to Show an Order January universe. entropy of until least Immigration by the issued promptly was a a decision in a civil case example, For

H47 deported charging and Naturalization Service him May 1988—almost five deportability on his based conviction. years ago. I write this dissent on March fact, allegations Butros admitted the 15, 1993. Butros is still here. He has deportability, sought conceded discre- privilege abused living in this coun- tionary relief under Section of the try by using selling cocaine, the latter and Naturalization probation while on no less. caught, When 1182(c). U.S.C. § he lied and arrogantly attempted manip- ulate system. Now, he claims he is attempted pull Butros the wool over entitled to another chance to eyes convince the immigration judge hearing INS merits he relief. But- case. He manufactured excuses for his cocaine, statement govern- use of ros’s falsely claimed he Fisher had lesson, powerless learned his ment is presented anything to do himself to him completely However, prescient. rehabilitated. INS rebutted Butros’s claims with a wit- importance case, however, of this conclusively ness who established that But- not so here, much that is still Butros but ros had sold cocaine on three occasions perpetuate approach by probation while on for the crime which federal judiciary to the work of the Immi- triggered deportation proceedings. Ev- gration and Naturalization Service that idence was also admitted that Butros had renders impotent many instances to agent been arrested an undercover in accomplish part statutory of its mission: mid-January 1988 in connection with these appropriate removal from our nation of Opinion immigra- recent sales. The persons privilege who have forfeited the judge summarizes his view of these residing main, here. In .the hearing: revelations and the outcome of the opinion yet foray stands as another by “the the conclusion of Butros’s testimo- [At dangerous” least government, branch of ny,] ready I was finding to make a (A. Hamilton), The Federalist No. 78 onto rehabilitation and to make very favor- co-equal the turf of neighbors. its ruling [Then, able the Service [him].

presented its case in I rebuttal.] cannot I and I do not find activity that such while probation on any degree indicates of re- A. habilitation The whatsoever.... events A conceding deportability, resident alien surrounding clearly arrest indicate [this] Butros, may apply such as Immigra- to the a total lack of I rehabilitation. am fur- (“INS”) by ther and Naturalization Service respondent’s distressed own testimony today. I relief if he would make a find- can demonstrate ing that deliberately unrelinquished he withheld “a lawful domicile [in only truth from me he admitted United years.” of seven consecutive States] testimony witness, after of the Mr.’ Section and Nat- Fisher, totally whom I found 1182(c). credible uralization 8 U.S.C. testimony. operating Counsel was alien, majority opinion means that such an under the illusion that since there is denied relief and or- one conviction that there is no other deported dered finality, with administrative problem.... I am further by distressed remains a lawful resident for the Mr. reported what Fisher to be the con- making reopen, a motion to but that 1988, mid-January versation in only four same alien is not a lawful resident for the ago respondent months was arrest- purpose continuing related to accumu- by agent ed the undercover and said to late eligibility require- time towards the Fisher, Mr. anything “You didn’t do be- years. ment of consecutive The ma- fore, why you you do think any- can do jority opinion condemns the Bureau of Im- thing now?” migration Appeals’ (“BIA”) position as analysis, Based on this “self-contradictory.” relief under This is a case of the 212(c) was denied. Butros pot calling was ordered the kettle black. 1148 precise directly addressed not B. not sim- issue, the court does at question analysis its begins opinion on the own construction impose its ply Me- of review. wrong standard necessary statute, as would v. case, Abedini single citing chanically interpreta- administrative of an absence Cir.1992), 188, 190-91 n is silent Rather, if the statute tion. and re- important distinctions ignoring specific to the respect ambiguous with area butter in this bread finements issue, question opinion claims jurisprudence, on is based answer agency’s whether the statutes interpret power to novo de statute. construction permissible how tell the INS consideration under agen- of an administrative power “The apply its construe creat- congressionally cy to administer respectfully reopen. motions garding requires the necessarily program ed ... More- contrary. law is believe making and the policy formulation con- to the pretense of its over, stripped left, implicitly any gap to fill rules statu- really turns opinion trary, the Congress.” Morton by explicitly, workings of construction, but tory 1055, 199, 231 S.Ct. Ruiz, U.S. [94 Thus, standard the cited regulations. 1072, 39 L.Ed.2d 270] analysis. to the irrelevant review at 842-843, 2781- f 104 S.Ct. Id., o our review governing rule The first omitted). (footnotes agen administrative of a federal work into the to accord deference this rule incorporated the INS have cy such as We gov so done interpretation circuit, agency’s law of filling of Act. respect 212(c) of the erning respect statute with explicitly, left, implicitly or observa- these we made “any gap Ayala-Chavez, Ruiz, 415 U.S. Morton Congress.’’ tions: 39 L.Ed.2d 231, 94 legal S.Ct. standard de novo review holding so the cases list all (1974). To Arteaga v. BIA. applied species of endangered menace the Cir.1988). Because 1227, 1228 only cite trees, Iso live applica- world on the 212(c) is silent Section v. Cardo INS to Morton: in addition three determine must standard, we legal ble 107 S.Ct. za-Fonseca, 480 U.S. agency’s administrative whether (1987); 434 Chevron 1207, 1221,94 L.Ed.2d permissible on a based standard Resources Natural v. U.S.A. Chevron Defense statute. See the reading of 2778, 843, 837, 104 S.Ct. Council, 837, 467 U.S. Council, 467 Res. Natural Def the (1984) (repeating 694 L.Ed.2d 81 2778, 2782, 81 L.Ed.2d 694] S.Ct. [104 Morton); Aya language quoted conclude need not court ‘The (1984). (9th Cir. F.2d 638 la-Chavez was the agency construction the 1990). have permissibly could only one it reading the or even ... adopted in by its absence Chevron, conspicuous question if the reached have court workings explains the opinion, Id. proceeding.’ judicial arisen in had of deference: this rule of n. at 2782 S.Ct. 11]. n. 11 at 843 [104 con agency’s reviews a court When BIA’s to the deference considerable show it adminis statute which struction it adminis- the statutes of interpretation questions. two ters, it is confronted ters .... whether First, question always, is BIA’s con- determining whether pre directly spoken has Congress permissible, of the statute struction intent of If the issue. question cise always that courts first note end of clear, is the Congress e discretionary broadly the interpreted court, as well matter; th Attorney General authority unambig to the give effect must agency, of In- deportation. deny waiver If, grant or Congress. intent expressed uously authori-- discretion in this Congress herent however, determines the Attorney grant or ty statutory provision General to There is no for re-

deny deportation. opening deportation proceeding, waiver Inherent in of a authority authority this discretion is the for such motions derive Attorney solely General and his subordinates promulgated by general Attorney to establish standards gov- granting General.... discretion, ern the exercise such motion to is thus discretion- long rationally as those standards are ary, and the Attorney General has statutory related to the scheme. grant “broad discretion” deny motions.... This is especially true in a added) (citations (emphasis 944 F.2d at 641 where, proceeding gen- as a omitted). matter, eral every delay works to the Judicial adherence to this sensible and advantage of deportable alien who long-standing principle promotes of review merely wishes to remain in the United uniformity in agency’s applica- national States. law, tion of uniformity federal which is — Doherty, U.S. -,-, INS v. promoting goal treating essential in 719, 724-725, 112 S.Ct. 116 L.Ed.2d 823 same, people regardless all of the fed- (1992) (citations omitted). Thus, “the in eral circuit which live. Failure or respect interpretation courts must in refusal to adhere to this rule the form of agency Congress delegat to which substituting judicial judgment for that of responsibility ed the for administering the agency to the utter disorder contributes statutory program,” Cardoza-Fonseca, operates, in which the INS now disorder (citations atU.S. 107 S.Ct. at 1221 generated by opin- dissonant circuit court omitted), unless that interpretation is “arbi ions which can called “all over the trary, capricious, manifestly contrary to lot,” in reasoning both as well as result. Chevron, the statute.” 467 U.S. at case, demonstrate, This as I shall is an government at 2782. “In S.Ct. example happens of what when different separated powers, it judiciary is not for the problem circuits tackle the same without usurp Congress’ grant authority deferring agency charge. Attorney by applying ap General what C. proximates de novo review.” Rios-Pineda, 444, 452, INS v. 471 U.S. present appeal does deal with a S.Ct. 85 L.Ed.2d 452 “gap,” an area of the law which there is statutory guidance. Nowhere do the D. provide any guidance statutes as to when process eligibility administrative The issue this case is whether an alien ceases, nowhere deportability who has conceded and been any guidance statutes is there as to when denied relief under § against time ceases to accrue the seven- of precluded by the Act be year requirement, and nowhere in the Act (“BIA”) Immigration Appeals from mak- anything reopening pres- is there about to ing to reopen a motion for additional ent new evidence or considerations. Fur- 212(c)discretionary consideration on the thermore, majority opinion’s conclu- ground longer eligible alien is no essentially sions as noted stem a dis- from such consideration. reopening The Board’s agreement application it has with the INS’s permissive only. are An alien permissive regulations governing right reopen. Although does not have a to opening.1 regulations preclude granting Congress spoken circumstances, has not on the issue of such a motion under some reopening deportation proceedings. As the there is no indication that all other cir- Supreme Court has observed: giv- cumstances due consideration need be 1. Butros’s motion was both to reconsider and to al of the motion to reconsider. a the BIA's is deni- reopen. Implicit opinion Board also or fact. of law tions that to claim It is false request.

toen an extreme—that opposite rejected the INS to abide forcing the doing is arewe all resi- permanent connection, a lawful remains alien that In regulations. by its own is exe- deportation order “lawful until the dent that determined BIA has idea “inher- this qual- found to The Board needed cuted. status” resident an noting exam- as admin- ently incongruous,” an ends relief ify for § “a a rule such is en- under deportation that the fact ple final order istratively exhaust- on the who has deportable reversal alien subsequent clearly tered, barring rights but whose deportability. appeal finding judicial ed all merits en- will be some reason to reconsider motion departure a cannot Thus, desig- to accord entertained, may continue a motion to ... forced be —which long so not. preference evidence—will visa new relatives nated based is INS, country.” in Gonzales in this rule approved this he remains has INS Cir.1990). All the adopt to declined likewise The Board a is no alien an once is that said af- continues status lawful that the view con- is as the INS far resident lawful depor- order a final administrative ter INS from the cerned, alien’s that through judicial entered, and tation might gain on orhe she whatever to limited has Although an alien process. way of a to reconsider motion a Board’s review judicial right to mes- to review. petition victory on a reasoned, review such order, the Board is, “You had alien deportable sage to the would, as Moreover, a rule limited. failed, us, you to convince opportunity your ap- encourage “spurious above, noted to opportunity you give need courts, solely accu- made peals” us otherwise convince try to reopen to eligibility time toward more mulate supposed INS evidence.” Was new 212(c) relief. But- administrative decide upon its accordingly settled The Board domiciliary, but lawful longer a no ros was termi- status resident lawful rule make a he wished to if he was yes adminis- entry of a final upon nates reopen? It deportation.... trative is both approach view, INS’s my grant a motion sense logical makes per- be and should reasonable rational and govern- Here, stand. mitted ap- considering an alien’s purpose of its explanation brief, BIA’s ment’s an alien relief when plication careful evaluation adopted after position for such eligibility prima has lost facie proceeding points longer is is no or she he relief because resident alien’s which permanent resident. [sic] “changed” might considered be omitted). (citations 101(a)(20)of meaning of Section within problem to a solution cogent This is a Nationality As clear answer. no obvious or 1101(a)(20): U.S.C. § solution BIA’s such, accord the I would termination The Board concluded due Chev- weight it is under considerable upon a “premature” of status accom- is a reasonable This solution ron. immigra- by an deportability finding of In- competing interests. modation right to has a an alien judge because taken position stead, today our we reverse finding, and the appeal already is aggravate what and in Gonzales novo record de may review conflicts.2 of inter-circuit sorry state independent determina- its own and make alien when to admit General person no discretion point out that passing, I would 2. In unrelinquished domicile "returning to a lawful 212(c) could language of § reading plain years....” consecutive of seven case to in applies this how ever understand 212(c), U.S.C. 8 Nationality § face, and situa- covers place. itsOn the first language twisted 1182(c). this How proceed- § "temporarily an alien tions where case is presented the situation Attorney cover gives voluntarily," and it ed abroad H51 Alabama, Florida, In Georgia, and II how ever, the cutoff date of the accrual of the current state of the law A review of the 212(c) eligibility time needed for is nei § In my pejorative description. supports deportation ther the date the order be Texas, Louisiana, Mississippi, and most final, administratively comes nor the date Indiana, Illinois, Wisconsin, probably reconsider or status is rule is that lawful current case, reopen “upon but the date which petition for in connection with a terminated deportation pro the INS commences 212(c) deportation order relief when a § ceedings, i.e. when the order to cause show administratively final. Variam INS, becomes Marti-Xiques v. 741 issued.” INS, parambil v. 350, (11th Cir.1984); 831 F.2d 1362 Cir. see also Ballbe v. 355 INS, INS, v. 1987); 306, (11th Cir.1989), Rivera cert. 810 F.2d 540 886 F.2d 309 denied, 929, 2166, 495 110 Cir.1987). S.Ct. 109 quote To the Fifth Circuit: L.Ed.2d 496 The Eleventh Circuit sum, of the BIA as to In the conclusion appears ignored suggest INS’s the alien’s resident when approach rejected ed Second Cir gives the sensible one. It terminates is INS, Lok v. approach cuit’s F.2d 107 681 assert his claim ample alien time to (2d Cir.1982), permits time to accrue 212(c) prevents him section relief and deportation until the order admin becomes litigating his various claims istratively final. piecemeal fashion. Connecticut, York, Vermont, In New Rivera, added); (emphasis 810 F.2d at 542 ineligibility the rule on it is unclear what is. INS, v. see also Prichard-Ciriza 978 F.2d Circuit, freewheeling opin- in a The Second INS, (5th Cir.1992); Ghassan 223 appear appreciate ion that does not (5th Cir.1992). 972 F.2d 637-38 reopen motions to difference between currently agrees Seventh Circuit hand and motions to reconsider on the one Circuit, although it in a Fifth has done so other, panel’s approach in rejected our eligibility question hinged case where the to indicate Gonzales but did not bother the alien had accumulated on whether apply to this precisely what rule it would requisite of lawful domicile (2d Vargas 938 F.2d 358 situation. 212(c) necessary qualify consider- § Cir.1991).3 doing, hold- In so it limited its explicitly relied ation. Seventh Lok ing proposition “that an alien eligi- on Rivera support holding cannot become eligible for bility relief is measured as through subsequent § accrual of time lief deporta- Board affirmed the threshold, the date the once he seven-year towards said, agree Id. at tion order. The court “We deportable.” has conceded that he 110). Lok, Vargas interpre- the Board’s the Fifth Circuit that F.2d at (citing id. at “arbitrary capricious”, and reflects tation of reasonable labels § that Rivera calls approach consideration of the alternatives.” “sensi- a careful aligned explicitly Variamparambil, F.2d at 1367. ble.” The Second Circuit nutshell, Vargas, interesting. prior action.” aliens who had not the BIA to reevaluate In a country seeking premise appears and were left the This to be 938 F.2d at 363. argued they were denied wrong. is based on new A motion equal protection process com and due request on a settled evidence. A to reevaluate country pared who had left the to aliens This distinc- record is a motion reconsider. 212(c). agreed therefore could resort permit the BIA does tion is substantive because [212(c) “eligibility relief cannot and held constitutionally ] notwithstanding ad- to reconsider motions eligi denied to otherwise ministrative 1251(a)(ll), deportable ble alien who is under INS, 641 F.2d issue. See Chudshevid v. departed from and whether or not the alien has ("A (9th Cir.1981) motion to and a mo- States_” Tapia-Acu returned to the United separate and distinct tion to reconsider are two (9th Cir.1981). na v. requirements, different motions with effect, the statute. we rewrote regula- together are discussed in the same tions.”) Vargas panel stated that a motion to re- 3. The relief, simply open “requests no new but asks re right to seek States) alien’s to an ed in Riv- dissent Judge Williams’s with itself fur to proceedings opening to refers 362-63, at era, id. relief for such application an pursue Riv- ther whim.” “oppressive rule as BIA’s a loss of point J., (Williams, beyond dissent- even at 542 era, 810 F.2d clearly oc has reject- resident status Vargas Curiously, ing). Cerna, the INS’s Int.Dec. explanation” Matter curred.” “post-hoc a ed as 7, 1991). Com (BIA of Chevron. Oct. defense 11 n. app. in its at invocation deference, 450-51, 105 howev- Rios-Pineda, rule of 471 U.S. The pare at 363. anything: “ju (admonishing against “explanation” er, not an 2102-03 is S.Ct. at Cir- The Second that would of review. incentives” augmented standard dicially is a simply un- deportability of Chevron conceding treatment cuit’s an alien permit and guidance much for Parenthetically, So satisfactory. process). drag out rendered many cooks Too coherence. intent opinion disclaims majority soup inedible. of when the issue Vargas on side time towards accumulate alien ceases applica- rule “sensible” today, the Until die is years, but required pre- Circuits and Seventh in the Fifth ble Arizona, California, cast. Alaska, also vailed Nevada, Oregon, Montana, Hawaii, Idaho, incon- and Thus, three different at least Mar- Guam, the Northern Washington, and essentially deal with rules exist to sistent Gonzales, 921 F.2d at See Islands. iana to an happens problem.4 What the same involving by an issue Now, prompted 240. entirely on depends this context alien in INS, 875 F.2d Chu jurisdiction, appellate arbitrary If isn’t happens. this where jurisdic- Cir.1989)(with respect to goes, I don’t saying capricious, as and can be deportation order appeal, a is. know what subsequently filed by a nonfinal rendered Congress say if Imagine what reconsider), or to reopen either law: this had enacted abandoned, cementing a multi- rule (1) in ceases relief Eligibility for § creating even split” and “circuit faceted Indiana, Texas, Il- Louisiana, Mississippi, majori- INS. uncertainty for the more Wisconsin, linois, when long as the Board that “as opinion holds ty (2) final; administratively becomes case, the may reconsider Florida, Georgia, when Alabama, case for in that petitioner issued; (3) in cause to show the order not been purposes Hawaii, California, Ida- Arizona, Alaska, of action finally determined Washing- Nevada, Oregon, Montana, ho, Board.” by the Guam, Mariana ton, the Northern however, questions more rule, raises This nomay Islands, when to recon a motion Would it answers. than case; (4) in Con- reopen the reconsider pre a motion denial of sider Vermont, under necticut, New York finality? Will a quickening vent rule in different which is a rule by an alien made motions series Texas, Indiana, Il- Louisiana, Mississippi, ripening off the deportation stave fighting clearly stat- not linois, but and Wisconsin ? Will under Chu jurisdiction elsewhere, on the (5) depending ed; and a conclu come to ever these judges of the by the chosen option do well opinion would sion? Appeal. Courts thought and more rule give this new “straight pass even a law would Such as it appear, It would substance. more test,” be able claim much less face “would this new rule does to doubt, No existence. for its basis ‘physi rational (other than recognize no bases, due penchant for rational our the Unit the alien deportation’ of cal they supposed to are what will know sure brings admonition mind the approach 4. This rules, at up the going to are make before If we Justice to me do.” Supreme Court intelligible. you forget are judge: those rules should "Never least became writing finished, for, you are make

H53 INS, equal protection, sitting. Fleary See also v. process, we would at one manifestly 711, (11th unconstitution- Cir.1992); strike it down as 712-13 Fayazi- INS, See, e.g., Tapia-Acuna v. INS, al. Azad v. (9th Cir.1986); 792 F.2d 873 Cir.1981). might F.2d 223 even INS, Hyun Chung Joon v. 720 F.2d 1471 swipe Congress having denied, take or two (9th Cir.1983), cert. 1216, 467 U.S. today effectively Yet lost its mind. 2659, 104 S.Ct. 81 L.Ed.2d 366 impose such a bizarre law on the United Chu, INS takes issue with as does the disagree States because we with the INS INS, Nocon v. Third Circuit 789 F.2d Com- on an issue which is to decide. INS’s (3rd Cir.1986), disagreement but that pare Jong Wang, INS v. Ha 450 U.S. by majority opinion’s has been shelved 1027, 1031, 101 S.Ct. 67 L.Ed.2d 123 disregard Parenthetically, decision to it. (1981) (“[The Attorney interpre- General’s in Akrap Seventh Circuit tation of the should not be overturned Act] (7th Cir.1992), recently has by reviewing simply because it and, Fleary, rejected implication, Chu prefer stat- another construction of the also. ute.”). The federal establishment micromanaging seems obsessed with CONCLUSION point INS to the of disinterest in the na- pulled The INS continues to all emperor’s tional result. When skin directions at once fractious circuits. extent, showing to this he must be told to Maybe the Supreme Court will iron out all up. example cover If we needed an impossible wrinkles, maybe of these validate Chevron highlight and to the mis- Congress INS will take this repair. area, chief of de this is novo review this Meanwhile, Butros, Time will tell. Furthermore, inherent it. arrogantly privilege living abused the opinion’s suggestion that the INS could by selling drugs lying here immi- to an change cope my gration judge, stays put. proof of this concerns is an admission that the statutes pudding eating. unpalatable. is in the It is provide approach barrier INS’s I respectfully dissent. reopening. This concession is further inapposite. proof that de novo review is believe,

I as do the Fifth and Seventh

Circuits, holding Gonzales that our holding.

sound. I would affirm that straighten perceived out the discord

between Gonzales Chu by pointing out fundamentally address different

issues, 106(a)(6) by adding and that America, UNITED STATES of 1990, Congress Immigration Act of Plaintiff-Appellee, problem by seems to have resolved the mandating consolidation of a review from an order of with a review TRAYNOR, Edward Robert sought respect to a motion to Defendant-Appellant. or reconsider that order. No. 92-30079. 106(a)(6), Nationality 8 U.S.C. 1105(a)(6). easy This makes it to do Appeals, United States Court Chu, say

what we did in which was to Ninth Circuit. we lack jurisdiction to review a Argued and Dec. 1992. final, Submitted and that such an order until it is long subject is not as it is the final April Decided 1993. pending either to reconsider or Chu v. reopen. F.2d 777 Cir.1989). Thus, us, gets when a matter

everything will be and heard consolidated

Case Details

Case Name: Naim Butros v. United States Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 9, 1993

Citation: 990 F.2d 1142

Docket Number: 91-70372

Court Abbreviation: 9th Cir.