Lead Opinion
Naim Butros petitions for review of a decision of the Board of Immigration Appeals (Board) dismissing his motion to reopen a denial of waiver of deportation. We grant the petition for review and remand for further proceedings.
BACKGROUND
Naim Butros entered the United States in February 1975. He was six years old. His status at the time of entry was that of a lawful permanent resident, that is, one
Since the date of his entry, Butros has lived continuously in the United States. His mother, father, brothers, and sister also live in the United States, and he presently resides at home with his family and is gainfully employed.
In 1987 he was convicted of a drug offense in Oregon, and the Immigration and Naturalization Service (INS) moved to deport him. At the hearing he conceded de-portability and moved for discretionary relief under section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c), which reads as follows:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General....
Under case law discretionary relief may be extended not only to aliens seeking to return to the United States but also to resident aliens. Tapia-Acuna v. INS,
In an oral decision May 26, 1988, the immigration judge found that Butros had not been rehabilitated and denied discretionary relief. He entered an order “that the respondent be deported from the Unit-, ed States to Syria.” An appeal to the Board was filed on the same day.
On November 7, 1990, Butros’s appeal was summarily dismissed by the Board pursuant to 8 C.F.R. § 3.1(d)(l-a)(i). The Board observed that it had received no written brief or statement of any kind from Butros although he was represented by counsel. The Board concluded that it had not been meaningfully informed of the basis of his appeal. Under the invoked regulation the Board was entitled to dismiss summarily whenever “the party concerned fails to specify the reasons for his appeal on Form I 290A.”
Butros got a new lawyer and applied for a stay of deportation with the district director. The application was denied on January 3, 1991.
On January 9,1991, Butros filed with the Board a motion styled “Motion to Reopen and Reconsider.” This motion’s opening sentence stated that he moved the Board “to reopen his deportation proceeding and to reconsider summary dismissal” of his appeal. He offered new evidence and also claimed ineffective assistance of counsel. He asked for a stay of deportation.
The Board denied the stay on January 23, 1991. Butros then filed a petition of habeas corpus in the United States District Court for the District of Oregon. On April 23, 1991, the court reversed the district director and the Board and ordered the INS to continue Butros on his existing bond. The district court observed that it could readily see that Butros’s claim was “not frivolous.” By refusing to grant the stay, the Board and the district director had acted “to effectively foreclose petitioner’s right under 8 C.F.R. §§ 3.2, 3.8 to move to reopen this case.” The district court concluded that the denial of the stay was an abuse of discretion.
On May 29, 1991, the Board gave its decision on Butros’s motion to reopen and to reconsider. The Board held that the deportation order against Butros “became administratively final at the time of our November 7, 1990, decision in this case.” The Board continued: “At that point the respondent lost his status as a lawful permanent resident of the United States. He is therefore no longer eligible for a section 212(c) waiver.” The Board cited Gonzales v. INS,
Butros petitioned this court for review. The assigned panel requested an en banc
ANALYSIS
“We review de novo the Board’s determination of purely legal questions regarding the requirements of the Immigration and Nationality Act.” Abedini v. INS,
The Board has issued a regulation on motions to reconsider or to reopen, 8 C.F.R. § 3.2, set out below in a footnote.
The salient aspect of the present regulation is that the right to move to reconsider or to reopen is in nowise limited by reference to the administrative finality of the Board’s initial decision. If the Board’s original decision were final as to the status of the petitioner for discretionary relief, then of course there would be no such thing as reconsideration or reopening for the petitioner who lost on the first round. But to say, as the Board’s regulations do say, that you may have a second round and at the same time to say, as the Board says here, you may not have a second round, is to engage in contradiction.
The genesis of the Board’s present self-contradictory position appears to be Matter of Lok, 18 I & N Dec. 101 (BIA 1981). In that case an alien who began to qualify for permanent lawful residence in 1971 was convicted of narcotic offenses in 1973 and ordered deported in 1976. Subsequent petitions travelled twice to the Second Circuit. In its 1981 decision the Board, understandably a little vexed, recast the question it had received on remand from the Second Circuit and decided that the petitioner, once he was found deportable by the Board, could not accumulate time that counted as lawful permanent residence. Id. at 104-05.
The Board noted that to let an alien retain his status as a lawful permanent resident “throughout the judicial proceedings” would “encourage spurious appeals to the courts, made solely for the purpose of accumulating more time toward eligibility for § 212(e) relief.” The Board also noted that to hold that an alien under a final order of deportation was still a lawful permanent resident led to results that were “inherently incongruous” such as the alien having the right to accord a designated relative a visa preference so long as the alien remained in this country. Finally, the Board noted that “in those relatively rare instances where the court determines that the Board erred,” the reversal of the Board nullified its order and therefore restored the alien’s lawful permanent resident status.
Matter of Lok was affirmed by the Second Circuit, Lok v. INS,
In our own Gonzales case, however, we expanded the reasoning of the Board’s decision in Lok and held that the Board was right in denying Gonzales’s motion to reopen a § 212(c) application for relief because she was statutorily ineligible once the Board had decided her initial appeal against her and upheld the Immigration Judge’s order of deportation. Gonzales,
We now overrule Gonzales. The fallacy of Gonzales is the belief that what is final for certain administrative purposes is final for all purposes. The Board itself in Matter of Lok implicitly conceded that such a comprehensive notion of finality was untenable because it conceded that if a circuit court reversed the Board, the petitioner’s status of lawful permanent residence would return. Matter of Lok, 18 I & N Dec. at 107. In other words, the Board recognized that when appellate review exists, what looks like a final status can well turn out not to be a final status.
It is equally evident that the same conclusion must be reached when a right to move for reconsideration or a right to move for reopening with the Board exists. The Board may, in fact, reopen or reconsider. It has done so. See Vargas,
As to the concern expressed by Gonzales that there will be no end to applications for
Because the case before us concerns only the status of a petitioner before the Board, acting under the Board’s own regulations and asking for reconsideration or reopening of his case, we have no quarrel with Matter ofLok as it was affirmed and interpreted by the Second Circuit. We are not deciding when an alien ceases to accumulate credit toward seven years of lawful permanent residence. By the same token we are not deciding the status of an alien subject to a deportation order for purposes of giving visa priority to a relative.
We do not reach the issues presented by Butros for reconsideration and/or reopening. Rather, we remand to the Board for its determination of these questions.
The Petition is GRANTED and the case is REMANDED for proceedings not inconsistent with this opinion.
Notes
. The Board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which a decision has been made by the Board, whether requested by the Commissioner or any other duly authorized officer of the Service, or by the party affected by the decision, shall be only upon written motion to the Board. Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. A motion to reopen or a motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deportation proceedings occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. For the purpose of this section, any final decision made by the Commissioner prior to the effective date of the Act with respect to any case within the classes of cases enumerated in § 3.1(b)(1), (2), (3), (4), or (5) shall be regarded as a decision of the Board. 8 C.F.R. § 3.2 (1992).
Dissenting Opinion
with whom BRUNETTI, Circuit Judge joins, dissenting:
Naim Butros, a permanent resident alien, pleaded guilty to possession of cocaine on July 19, 1987 — almost six years ago. On January 21, 1988, an Order to Show Cause was promptly issued by the Immigration
Butros attempted to pull the wool over the eyes of the immigration judge hearing his case. He manufactured excuses for his use of cocaine, falsely claimed he had learned his lesson, and presented himself as completely rehabilitated. However, the INS rebutted Butros’s claims with a witness who conclusively established that But-ros had sold cocaine on three occasions while on probation for the crime which triggered the deportation proceedings. Evidence was also admitted that Butros had been arrested by an undercover agent in mid-January 1988 in connection with these recent sales. The Opinion of the immigration judge summarizes his view of these revelations and the outcome of the hearing:
[At the conclusion of Butros’s testimony,] I was ready to make a finding of rehabilitation and to make a very favorable ruling to [him]. [Then, the Service presented its case in rebuttal.] I cannot and I do not find that such activity while on probation indicates any degree of rehabilitation whatsoever.... The events surrounding [this] arrest clearly indicate a total lack of rehabilitation. I am further distressed by the respondent’s own testimony today. I would make a finding that he deliberately withheld the truth from me which he only admitted after the testimony of the witness, Mr.’ Fisher, whom I found totally credible in his testimony. Counsel was operating under the illusion that since there is only one conviction that there is no other problem.... I am further distressed by what Mr. Fisher reported to be the conversation in mid-January 1988, only four months ago when respondent was arrested by the undercover agent and said to Mr. Fisher, “You didn’t do anything before, why do you think you can do anything now?”
Based on this analysis, relief under § 212(c) was denied. Butros was ordered deported on May 26, 1988 — almost five years ago. I write this dissent on March 15, 1993. Butros is still here. He has abused the privilege of living in this country by using and selling cocaine, the latter while on probation no less. When caught, he lied and arrogantly attempted to manipulate the system. Now, he claims he is entitled to another chance to convince the INS he merits discretionary relief. But-ros’s statement to Fisher that the government is powerless to do anything to him was prescient.
The importance of this case, however, is not so much that Butros is still here, but that we perpetuate an approach by the federal judiciary to the work of the Immigration and Naturalization Service that renders it impotent in many instances to accomplish part of its statutory mission: the appropriate removal from our nation of persons who have forfeited the privilege of residing here. In .the main, the majority opinion stands as yet another foray by “the least dangerous” branch of government, The Federalist No. 78 (A. Hamilton), onto the turf of its co-equal neighbors.
I
A.
A resident alien conceding deportability, such as Butros, may apply to the Immigration and Naturalization Service (“INS”) for discretionary relief if he can demonstrate “a lawful unrelinquished domicile [in the United States] of seven consecutive years.” Section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c). The majority opinion means that such an alien, although denied discretionary relief and ordered deported with administrative finality, remains a lawful resident for the purposes of making a motion to reopen, but that same alien is not a lawful resident for the related purpose of continuing to accumulate time towards the eligibility requirement of seven consecutive years. The majority opinion condemns the Bureau of Immigration Appeals’ (“BIA”) position as “self-contradictory.” This is a case of the pot calling the kettle black.
The majority opinion begins its analysis with the wrong standard of review. Mechanically citing a single case, Abedini v. INS,
The first rule governing our review of the work of a federal administrative agency such as the INS is to accord deference to that agency’s interpretation of its governing statute with respect to the filling of “any gap left, implicitly or explicitly, by Congress.’’ Morton v. Ruiz,
Chevron, conspicuous by its absence in the majority opinion, explains the workings of this rule of deference:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. ■ Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
“The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz,415 U.S. 199 , 231 [94 S.Ct. 1055 , 1072,39 L.Ed.2d 270 ] (1974).
Id.,
We have incorporated this rule into the law of this circuit, and we have done so with respect to § 212(c) of the Act. In Ayala-Chavez, we made these observations:
We review de novo the legal standard applied by the BIA. Arteaga v. INS,836 F.2d 1227 , 1228 (9th Cir.1988). Because Section 212(c) is silent on the applicable legal standard, we must determine whether the administrative agency’s standard is based on a permissible reading of the statute. See Chevron v. Natural Res. Def Council,467 U.S. 837 , 843 [104 S.Ct. 2778 , 2782,81 L.Ed.2d 694 ] (1984). ‘The court need not conclude that the agency construction was the only one it could permissibly have adopted ... or even the reading the court would have reached if the question had arisen in a judicial proceeding.’ Id. at 843 n. 11 [104 S.Ct. at 2782 n. 11]. We show considerable deference to the BIA’s interpretation of the statutes it administers ....
In determining whether the BIA’s construction of the statute was permissible, we first note that courts have always interpreted broadly the discretionary authority of the Attorney General to grant or deny waiver of deportation. Inherent in this discretion is the authori-*1149 ty of the Attorney General to grant or deny waiver of deportation. Inherent in this discretion is the authority of the Attorney General and his subordinates to establish general standards that govern the exercise of such discretion, as long as those standards are rationally related to the statutory scheme.
Judicial adherence to this sensible and long-standing principle of review promotes national uniformity in an agency’s application of federal law, uniformity which is essential in promoting the goal of treating all people the same, regardless of the federal circuit in which they live. Failure or refusal to adhere to this rule in the form of substituting judicial judgment for that of the agency contributes to the utter disorder in which the INS now operates, disorder generated by dissonant circuit court opinions which can only be called “all over the lot,” both in reasoning as well as result. This case, as I shall demonstrate, is an example of what happens when different circuits tackle the same problem without deferring to the agency in charge.
C.
The present appeal does deal with a “gap,” an area of the law in which there is no statutory guidance. Nowhere do the statutes provide any guidance as to when in the administrative process eligibility for discretionary relief ceases, nowhere in the statutes is there any guidance as to when time ceases to accrue against the seven-year requirement, and nowhere in the Act is there anything about reopening to present new evidence or considerations. Furthermore, the majority opinion’s conclusions as noted stem essentially from a disagreement it has with the INS’s application of its permissive regulations governing reopening.
Congress has not spoken on the issue of reopening deportation proceedings. As the Supreme Court has observed:
There is no statutory provision for reopening of a deportation proceeding, and the authority for such motions derive solely from regulations promulgated by the Attorney General.... The granting of a motion to reopen is thus discretionary, and the Attorney General has “broad discretion” to grant or deny such motions.... This is especially true in a deportation proceeding where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.
INS v. Doherty, — U.S. -,-,
D.
The issue in this case is whether an alien who has conceded deportability and been denied discretionary relief under § 212(c) of the Act may be precluded by the Board of Immigration Appeals (“BIA”) from making a motion to reopen for additional § 212(c) discretionary consideration on the ground the alien is no longer eligible for such consideration. The Board’s reopening regulations are permissive only. An alien does not have a right to reopen. Although the regulations preclude the granting of such a motion under some circumstances, there is no indication that in all other circumstances due consideration need be giv
In my view, the INS’s approach is both rational and reasonable and should be permitted to stand. Here, from the government’s brief, is the BIA’s explanation of its position adopted after a careful evaluation of the points in a deportation proceeding at which the alien’s lawful resident status might be considered to have “changed” within the meaning of Section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20):
The Board concluded that termination of status would be “premature” upon a finding of deportability by an immigration judge because an alien has a right to an appeal from this finding, and the Board may review the record de novo and make its own independent determinations of law or fact. The Board also rejected the opposite extreme — that an alien remains a lawful permanent resident until the deportation order is executed. The Board found this idea “inherently incongruous,” noting as an example the fact that under such a rule “a clearly deportable alien who has exhausted all his judicial appeal rights but whose departure cannot for some reason be enforced ... may continue to accord designated relatives visa preference so long as he remains in this country.”
The Board likewise declined to adopt the view that lawful status continues after a final administrative order of deportation is entered, and through the judicial appellate process. Although an alien has a right to judicial review of the Board’s order, the Board reasoned, such review is limited. Moreover, such a rule would, as noted above, encourage “spurious appeals” to the courts, made solely to accumulate more time toward eligibility for § 212(c) relief.
The Board accordingly settled upon its rule that lawful resident status terminates upon the entry of a final administrative order of deportation.... It makes no logical sense to grant a motion to reopen deportation proceedings for the purpose of considering an alien’s application for § 212(c) relief when an alien has lost prima facie eligibility for such relief because he or she is no longer is [sic] a permanent resident.
(citations omitted).
This is a cogent solution to a problem which has no obvious or clear answer. As such, I would accord the BIA’s solution the considerable weight it is due under Chevron. This solution is a reasonable accommodation of the competing interests. Instead, we reverse today our position taken in Gonzales and aggravate what is already a sorry state of inter-circuit conflicts.
A review of the current state of the law supports my pejorative description. In Louisiana, Mississippi, Texas, and most probably Indiana, Illinois, and Wisconsin, the current rule is that lawful status is terminated in connection with a petition for § 212(c) relief when a deportation order becomes administratively final. Variamparambil v. INS,
In sum, the conclusion of the BIA as to when the alien’s lawful resident status terminates is a sensible one. It gives the alien ample time to assert his claim for section 212(c) relief and prevents him from litigating his various claims in piecemeal fashion.
Rivera,
In Alabama, Florida, and Georgia, however, the cutoff date of the accrual of the time needed for § 212(c) eligibility is neither the date the deportation order becomes administratively final, nor the date the Board may no longer reconsider or reopen the case, but the date “upon which the INS commences the deportation proceedings, i.e. when the order to show cause is issued.” Marti-Xiques v. INS,
In Connecticut, New York, and Vermont, it is unclear what the rule on ineligibility is. The Second Circuit, in a freewheeling opinion that does not appear to appreciate the difference between motions to reopen on one hand and motions to reconsider on the other, rejected our panel’s approach in Gonzales but did not bother to indicate precisely what rule it would apply to this situation. Vargas v. INS,
Until today, the “sensible” rule applicable in the Fifth and Seventh Circuits prevailed also in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. See Gonzales,
This rule, however, raises more questions than it answers. Would a motion to reconsider the denial of a motion to reopen prevent the quickening of finality? Will a series of such motions made by an alien fighting deportation stave off the ripening of appellate jurisdiction under Chu ? Will these proceedings ever come to a conclusion? The majority opinion would do well to give this new rule more thought and more substance. It would appear, as it does to the INS, that this new rule “would recognize no finality (other than the ‘physical deportation’ of the alien from the United States) to an alien’s right to seek reopening of deportation proceedings to further pursue an application for such relief even beyond the point that a loss of lawful permanent resident status clearly has occurred.” Matter of Cerna, Int.Dec. 3161 app. at 11 n. 1 (BIA Oct. 7, 1991). Compare Rios-Pineda,
Thus, at least three different and inconsistent rules exist to deal with essentially the same problem.
Imagine what we would say if Congress had enacted this law:
Eligibility for § 212(c) relief ceases (1) in Louisiana, Mississippi, Texas, Indiana, Illinois, and Wisconsin, when a deportation order becomes administratively final; (2) in Alabama, Florida, and Georgia, when the order to show cause is issued; (3) in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands, when the Board may no longer reconsider or reopen the case; (4) in Connecticut, New York and Vermont, under a rule which is different from the rule in Louisiana, Mississippi, Texas, Indiana, Illinois, and Wisconsin but not clearly stated; and (5) elsewhere, depending on the option chosen by the judges of the U.S. Courts of Appeal.
Such a law would not pass even a “straight face test,” much less be able to claim a rational basis for its existence. No doubt, with our penchant for rational bases, due
I believe, as do the Fifth and Seventh Circuits, that our holding in Gonzales is sound. I would affirm that holding. I would straighten out the perceived discord between Gonzales and Chu by pointing out that they address fundamentally different issues, and that by adding § 106(a)(6) to the Immigration Act of 1990, Congress seems to have resolved the problem by mandating consolidation of a review from an order of deportation with a review sought with respect to a motion to reopen or reconsider that order. Immigration and Nationality Act, § 106(a)(6), 8 U.S.C. § 1105(a)(6). This makes it easy to do what we did in Chu, which was to say that we lack jurisdiction to review a deportation order until it is final, and that such an order is not final as long as it is the subject of a pending motion either to reconsider or to reopen. Chu v. INS,
CONCLUSION
The INS continues to be pulled in all directions at once by fractious circuits. Maybe the Supreme Court will iron out all of these impossible wrinkles, or maybe the INS will take this to Congress for repair. Time will tell. Meanwhile, Butros, who has arrogantly abused the privilege of living here by selling drugs and lying to an immigration judge, stays put. The proof of this pudding is in the eating. It is unpalatable. I respectfully dissent.
. Butros’s motion was both to reconsider and to reopen. Implicit in the BIA's opinion is a denial of the motion to reconsider.
. In passing, I would point out that no person reading the plain language of § 212(c) could ever understand how it applies to this case in the first place. On its face, it covers only situations where an alien has "temporarily proceeded abroad voluntarily," and it gives the Attorney General discretion to admit such an alien when "returning to a lawful unrelinquished domicile of seven consecutive years....” Immigration and Nationality Act, § 212(c), 8 U.S.C. § 1182(c). How this language was twisted to cover the situation presented in this case is
. The Vargas panel stated that a motion to reopen “requests no new relief, but simply asks the BIA to reevaluate a prior action.” Vargas,
. This approach brings to mind the admonition of a Supreme Court Justice to me before I became a judge: "Never forget who you are writing for, and when you are finished, make sure they will know what they are supposed to do.” If we are going to make up the rules, at least those rules should be intelligible.
Concurrence Opinion
with whom BEEZER and HALL, Circuit Judges, join, concurring:
I concur in the majority opinion and write separately to explicate my reasons for doing so.
As I understand it, the majority holds that “finality” in some cosmic sense is not really the issue here. Nor must we truly decide what lawful permanent residence means as that phrase is used in 8 U.S.C. § 1182(c) and defined in 8 U.S.C. § 1101(a)(20). Rather, the issue is a simple procedural one; it is a question of whether a determination of the BIA can be reopened and reconsidered at any time, regardless of the type of issue involved. As I see it the majority says, “yes.” I do not see that as a radical or shocking answer, so I agree.
We all know that finality is a somewhat fluid concept in law, as it is in nature — at least until the entropy of the universe. For example, in a civil case a decision of a district court on any issue can be reconsidered and upset long after it has become final. Fed.R.Civ.P. 60(b). Moreover, even criminal decisions, long since final, can be overturned in habeas corpus proceedings. Similarly, the INS in its wisdom has adopted a regulation whose plain words state that any decision is subject to reopening at any time, with the single exception noted in the majority opinion. See 8 C.F.R. § 3.2. Thus, the BIA’s final decision that a person is not entitled to section 212 relief can be reopened just as any other decision can be. Of course, that is not to say that a particular person will make a convincing argument for reopening; it is just to say that the person is not precluded at the outset.
All of this being so, we need not consider arguments regarding Chu v. INS,
In short, does not the BIA have to follow the regulations until they are changed? I think the answer is yes. Thus, I concur.