*1 from the claims got baggage that she and knew that male escort previous
aliens’ and traveling under aliases aliens were Se- illegally. States
entering the United checks in her baggage claim
creting the knowledge evidence of
underwear is also One, acts. As in Count illegality of her jury for the was sufficient evidence
there or reckless- that Yoshida knew
to conclude Zhuan, Cheng, the fact that
ly disregarded authorized to enter Yue were not
United States.
CONCLUSION light evidence in the reviewing
After we con- government, favorable to the
most evidence to that there was sufficient
clude convicting Yoshi-
support jury’s verdict violating
da 1324(a)(2)(B)(ii). 1324(a)(l)(A)(iv)
§§
AFFIRMED. EKIMIAN; Nagapetian;
Tigran Rouzan Petitioners, Hekimian,
Avetis AND
IMMIGRATION SERVICE,
NATURALIZATION
Respondent.
No. 99-70322. Appeals, States
United Court
Ninth Circuit. Nov. 2000.
Argued and Submitted April 2001.
Submission Withdrawn Sept. 2002.
Resubmitted Sept.
Filed
open untimely under 8 C.F.R. 3.2(c)(2), jurisdiction and that we lack review a BIA decision not to proceeding under 8 C.F.R. 3.2(a). I. Background Facts and Procedural Nieblas, CA, Los Angeles, Victor D. for Ekimian, citizen, an Armenian entered petitioners. a nonimmigrant United States as visi- Bernal, Ellison, Brenda E. David V. 1, 1993, tor on October and was authorized Couvillon, DC, Washington, Donald A. for to remain in the until March United States respondent. 28, son, 1994. His wife and also Armenian citizens, entered the United States as non- 12, 1993, immigrant visitors on November stay and were also authorized to 28,1994. United until March States 1, 1993, ap- On December the Ekimians BRIGHT,* NELSON, Before: T.G. plied asylum for in the United States.1 In FLETCHER, W. Judges. Circuit Agbu Manoogian Demirdjian School, accredited, a fully K-12 coeduca- FLETCHER, A. Circuit WILLIAM institution, tional phys- hired Ekimian as a Judge. ical education instructor and educator. Ekimian, wife, Tigran his Rouzan Na- performance, Based on Ekimian’s school son, gapetian, and their minor Avetis Hek- petitioned administrators for the Ekimi- (hereinafter imian, “Ekimians”) seek permanent residency ans’ filing first review of an order the Board of Immi- petition for labor with certification the De- (“BIA”) gration Appeals dismissing un- (“DOL”) partment of Labor on October timely reopen deportation their motion to 1995. There nearly two-year delay was a proceedings. The Ekimians based their approval in the DOL’s of Ekimian’s certifi- application motion to an on for an September cation. On the Immi- adjustment of status as skilled worker or (“INS”) gration and Naturalization Service professional pursuant to Immigration and approval; received the thirty-eight DOL’s (“INA”) Naturalization Act later, days approved the INS the school’s 203(b)(3)(A)®, (ii), §§ petition 1-140 (Immigrant Petition for 1153(b)(3)(A)®, (ii), §§ relying Tigran on Worker) Alien for Ekimian.2 recently approved petition Ekimian’s 1-140 Worker). Meanwhile, (Immigrant 26, 1995, Petition for Alien on June the INS We hold that the Ekimians’ motion to re- had administratively denied the Ekimians’ * Myron Bright, requires Honorable H. Senior Unit- 2. The INS a labor certification from Circuit, Judge Eighth ed States Circuit for the immigrant the DOL before it will issue an visa sitting by designation. immigrant worker. 8 U.S.C. 1153(b)(3)(B); 1182(a)(5). Tigran did Ekimian’s wife and son not make but, rather, separate requests asylum for requests based their on his claim. proceeding must filed motion to issued Orders asylum and had petition ninety days the date on filed within not be be why they should to Show Cause 28, 1996, BIA renders a final administra- the immi- which the On March deported. BIA had (“IJ”) tive decision. The denied the the Ekimians’ denied judge gration appeal from the IJ’s decision on deport- Ekimians’ and found them asylum request *3 28, 1997, party- that a April which meant the Ekimians to IJ allowed able. The 3.2(c)(2) § under filed motion voluntarily. depart July had been due on or before 1997. se, Ekimians, appealed acting pro The did not file their motion The Ekimians April the BIA. On decision to the IJ’s year. until November 20 of that appeal. The BIA denied the The BIA also refused to not a “credi- that Ekimian was BIA found 3.2(a), § sponte. Under 8 C.F.R. asylum withholding or claimant for ble its own mo- may reopen proceeding a “on he not met his and that had deportation” “at time.” or a tion” demonstrating persecution burden persecution should he fear of well-founded petition review of The Ekimians now for rejected BIA also Armenia. The return to the BIA’s refusal prejudiced he was Ekimian’s claim that proceedings. during the IJ’s conduct II. under the Jurisdiction depart the Ekimians The ordered Rules Transitional 28, 1997, vol- and continued their by May Ekimians subse- untary departures. The the decision of jurisdiction to review Our review of the petition a for quently filed by 8 governed BIA in this case is BIA’s decision. (repealed). Illegal § The 1105a U.S.C. Re- Immigrant Reform and Immigration pend- for review was petition While (“IIRIRA”), Pub. sponsibility Act of 1996 Ekimians, court, repre- now in this ing 104-208, (Sept. 110 3009-546 L.No. Stat. counsel, with the filed a motion sented 1105a, 30, 1996), § 8 but repealed U.S.C. 20, 1997, reopen the BIA on November petition. to this repeal apply does not for grounds As deportation proceedings. case falls under parties agree that this reopen, the Ekimians motion to their deportation rules because the transitional Ekimian had re- pointed Tigran out that Ekimians were against be- from the INS month ceived notice 1, 1997, April commenced before 17, 1997, fore, 1-140 that his on October af- entered final order of was that, approved, had been certification 30,1996. ter October applied had approval, this he based on permanent status to lawful adjustment of III. Discussion on On
resident alien October 19, 1997, court denied the this December argu- make central The Ekimians two review of the BIA’s petition Ekimians’ First, that their motion they argue ments. INS, 133 asylum. Ekimian v. denial if treated as it were reopen should be 1997) Dec.19, (unpub- Cir. F.3d than made more timely though even decision). lished BIA denied their ninety days after the asylum denial of their 22, 1999, appeal from the IJ’s BIA denied February On Second, that the they argue application. untime- as the Ekimians’ motion motion, 3.2(c)(2), on its own party- § BIA’s refusal ly. 8 C.F.R. Under discretion, was an abuse of sponte, question ability or sua Ekimians of the Attor- jurisdiction court has to re- ney qualify statutory and that this General to' proce- view that refusal on abuse-of-discretion by regulation, point dures we out that follow, standard. For the reasons we Congress itself codified the time limit of 3.2(c)(2) disagree arguments. with both (enacting IIRIRA 1229a(c)(6)(C)(i)). The statutory language provides: “Except provided Ninety-day Party-Filed A. Limitation on subparagraph, motion to (cid:127) 3.2(c)(2) Reopen Motions to under days shall be filed within 90 of the date of argue that the nine The Ekimians entry of a final administrative order of ty-day party-filed time limit for motions to 1229a(c)(6)(C)(i). removal.” *4 3.2(c)(2)3 § in reopen contained 8 C.F.R. 3.2(c)(2) § We therefore hold that not does 203(a), (b), §§ INA conflicts with 203(a), (b), §§ conflict with INA or 1153(a), (b); 245(a), (i), §§ §§ INA and (i). 245(a), §§ (i). 203(a) 1255(a), §§ Sections (b) provide preference in of the INA the B. The BIA’s Refusal Reopen to immigrant allocation of visas to relatives of on its Own Motion residents, permanent citizens and lawful as employment-based immigrants. well toas argue The Ekimians next that the BIA (i) 245(a) provide of INA Sections abused its discretion in refusing reopen to adjustment of of a nonimmi the status sponte. The sponte power BIA’s sua permanent lawful grant to that of resident. reopen to deportation proceedings such as 3.2(c)(2) negates §in Nothing or is other the Ekimians’ is described in 8 C.F.R. statutory wise inconsistent with these di 3.2(a): § rectives. (a) may General. The at any [BIA] time 3.2(c)(2) reopen or reconsider on only effect its own motion
The
has on an
any case in which it has
application
pursuant
rendered a
made
to
203 and
A request
reopen
decision.
to
or
recon-
(e.g.,
application)
the Ekimians’
any
sider
case in which a decision has
reopen
that a motion to
to consider an
[BIA],
by
been made
adjustment
the
which
application
request
for an
of status
[INS],
by
presented
by
party
must
to the BIA
made
the
or
the
be
no later
decision,
ninety days
by
than
after the
a
affected
the
must be in
issuance of
the
by
Nothing
final decision
the BIA.
in
form of a written motion to
the
the [BIA].
203(a), (b),
statutory
§§
language
grant
deny
of
or
The decision to
a
or
motion
245(a), (i),
§§
imposition
forecloses the
within
reopen
to
or reconsider is
[BIA],
such a deadline. To the extent that the
discretion
subject
of the
to
3.2(c)(2)
provides:
3. 8 C.F.R.
Except
whichever
provid-
is later.
as
(c)(3)
section,
(c)(3)
paragraph
ed in
Except
provided
paragraph
of this
section,
party may
only
a
may
file
one mo-
only
alien
file
one motion to
pro-
or
(whether
tion
exclusion
removal
before
(whether
ceedings
before the
or the
[BIA]
Immigration Judge)
or the
[BIA]
and that
Immigration Judge) and that
must
motion
days
motion must be filed no later than 90
days
be filed no later than 90
after the date
after the date on which the final adminis-
on which the final administrative decision
trative
pro-
decision was rendered in the
proceeding sought
was rendered in the
ceeding sought
reopened.
to be
reopened,
September
be
or on or before
(BIA)
Matter
[BIA]
restrictions of this section.
Interim Decision
(BIA
2997)[sic].”
deny
a motion to re-
has discretion
1158 guidance We take some acknowledgment by BIA’s decision. the BIA may that it Supreme from the in proceedings, Court’s decision and a statement that situations,” 470 it will Chaney, “exceptional Heckler v. U.S. 105 S.Ct. do so under (1985), more, without prison L.Ed.2d 714 where authorizes 84 us to review the in BIA’s decision for abuse of sought inmates Texas Oklahoma discretion. J-J-, In re compel Drug the BIA acknowledged only the Food Administration 3.2(a) that to enforce a federal law “allows the Board to prohibiting the proceedings situations”; “unapproved approved exceptional use drug”— i.e., did not unapproved particular regulation hold that the drugs requires use the Board to excep- for human execution. Id. at S.Ct. relief, Moreover, tional Supreme 1649. The situations. the BIA pro- Court denied explanation vided no holding that the of an as to what decision administra- constitute “exceptional except tive to exercise its “discretion” not situations” — facts In re J-J- failed presumed undertake certain actions is to describe them. to be immune from review under the Ad- The cases in which we have reviewed a (“APA”), ministrative Procedure Act “exceptional decision under an cir- 701(a)(2). 470 U.S. at cumstances” standard have been those Emphasizing agencies S.Ct. 1649. are which a explicitly relevant statute defined better equipped prioritize than courts to what Congress “exceptional considers an actions, administrative concerns and circumstance.” In Sharma v. Court held that: (9th Cir.1996), F.3d 545 we reviewed Congress
even where has not affirma- whether the BIA erred in refusing to re- review, tively precluded review is not to scind the Sharmas’ order after *6 if be had the statute is drawn so that a petitioners claimed they ap- failed to court meaningful would have no stan- pear deportation for their hearing because against dard judge agency’s which to “exceptional circumstances.” Under ex- exercise of discretion. In such a isting law, immigration the Sharmas could (“law”) the statute can be taken to have justify appear their failure to depor- at the decisionmaking “committed” the to the tation proceeding by showing that “excep- agency’s judgment absolutely.... [I]f tional circumstances” excused their ab- no judicially manageable standards are 1252b(c)(3)(A) sence. § See 8 U.S.C. (1994) judging available for how and when (repealed).4 “Exceptional circum- discretion, agency should exercise its stances” was defined the statute as cir- impossible then it is to evaluate “beyond cumstances the control of the alien,” action for exemplified “abuse of discretion.” by “serious illness of the alien or death of an immediate relative 830,105 Id. at S.Ct. 1649. alien, of the but not including compel- less The suggest Ekimians that In re J-J- 1252b(f)(2) ling § circumstances.” Id. at provides judicial a meaningful (1994) standard for (repealed). by Guided a statutory reviewing the BIA’s discretion definition, because it we were able to review whether indicates that BIA will pro- the Sharmas had deportation missed their ceeding sponte “exceptional when situ- hearing because of exceptional circum- ations” stances, exist. We do not believe that an and we held that they had not. repealed § by 1252b was IIRIRA.
1159 INS, dictating the guidelines and standards 170 of Likewise, Bhathal v. Singh deprived the sponte power BIA’s sua court (9th Cir.1999), that we concluded F.3d 943 “jurisdiction review Luis’s claim that untimely motion of to Bhathal’s Singh petitioner statute, have invoked its sua and held the BIA should reopen was barred her motion sponte authority filed a to reconsider had Singh-Bhathal if that even deportation proceedings.” reopen, he could not show to timely motion Reno, circumstances,” de- at 41. also Prado v. 198 Id. See “exceptional (1st Cir.1999) (“[B]ecause 1252b(f)(2), 292 justified F.3d § by 8 U.S.C. fined the BIA whether to invoke ‘the decision of appear at his failure to his INS, authority committed to its sponte 122 its sua is Farhoud v. also hearing. See (alien discretion,’ (9th Cir.1997) Prado’s claim is to unfettered failed F.3d 794 omitted)). (citation simply justiciable.” circumstances” “exceptional demonstrate de- appear at the his failure to excuse circuits on this position The of other the Sharmas hearing). Unlike portation ambiguous, but no other issue is somewhat Bhathal, Ekimians cannot Singh held that squarely circuit has or case- statutory, regulatory, point authority sponte its sua refusal to invoke circum- “exceptional law definition 3.2(a) subject judicial review. under the BIA’s sua applicable to stances” INS, 208 838 Socop Gonzalez v. F.3d Cf. 3.2(a). under power (9th (so F.3d 860 vacated holding), banc). Cir.2000) In (ordering rehearing en cannot discover suffi Because we (5th Ashcroft, Cir. Wang v. 260 F.3d against which ciently meaningful standard 2001), Fifth noted but failed to Circuit not to judge the BIA’s decision In reviewability. question reach the 3.2(a), that we do not we hold under Reno, Anin v. 188 F.3d review the Ekimians’ jurisdiction to have Cir.1999), Eleventh Circuit wrote have exercised that the BIA should claim 3.2(a) the BIA non-reviewable “gives so, join doing we sponte power. its sua claim. We can dismiss Anin’s discretion to Circuit, which, in Luis First discretion here.” find no abuse of (1st Cir.1999), affirmed F.3d 36 simultaneously seemed to state Anin court on the a motion to BIA’s denial of (and BIA’s discre inconsistently) that the untimely and the motion was grounds that non- deny tion to a motion *7 argue to the petitioner Luis failed that reviewable, reviewing that in the deni its sua have exercised BIA that it should (Or it is of discretion. al it found no abuse power. It then stated: sponte court, saying that the Anin conceivable Luis discretion,” that would Assuming arguendo no abuse of that it “can find reme- her administrative have exhausted to find jurisdiction had no meant that it argu- sponte Reno, the sua [by raising otherwise.) dies Mejia Rodriguez Cf. Cir.1999) below], juris- has no this court still ment n. 178 F.3d this claim because diction to review its discre BIA did not abuse (stating “the invoke 3.2(a)] BIA whether to decision concluding that tion [under authority committed to sponte is justify its sua the re not Mejia’s did arguments Therefore, the discretion. proceedings”). its opening of his unfettered renders it not very nature of the claim review.
subject judicial Conclusion added). we conclude foregoing, Based on The First (emphasis at 40 Id. reopen was Heckler, motion to that the Ekimians’ the lack wrote that under Circuit (1803) (“[Wjhere jurisdic- specific do not have untimely, duty and that we L.Ed. 60 is law, reopen the BIA’s refusal to assigned rights tion to review and individual de- deportation proceedings sponte. pend upon sua performance duty, of that clear, equally seems that the individual petition The Ekimians’ review is injured, who himself considers has the therefore DENIED. right country to resort to the laws of his remedy.”). for a BRIGHT, Judge, dissenting: Circuit denied the Ekimians’ motion to respectfully majori- I dissent from the reopen single, in a cursory paragraph: jurisdiction that we lack ty’s holding PER CURIAM. The motion to re- reopen depor- review a BIA decision not to open has been filed out of time and will I proceedings sponte. tation sua would prior be denied. Our order in these grant petition for review and remand proceedings April was entered on view, BIA. In my to the this is a case 3.2(c)(2) 1997. Pursuant to 8 C.F.R. justice where the interest of demands (with exceptions certain pertinent not an administrative be held accounta- here), reopen a motion to in any case liberty ble for its decisions. The interests subject previously the of a final decision family, of the Ekimian who have now been by the Board must be filed not later living nearly the United States for nine days than 90 after the date of that deci- years, no require less. (1996). 18,900 Fed.Reg. sion. See 61 In In panel, Immigra- its brief to this instant a motion to (“INS”) tion and Naturalization Service July would have been due on or before writes, 28, 1997. The record reflects that the Board received the motion on November Moreover, the decision to sua 10, 1997, rejected it for defects and it sponte purely an act grace is on the properly filed on November
part
being
of the Board. There
no stan-
1997. The
motion to
was there-
dard
apply
exercising
Board to
filed
Accordingly,
fore
out of time.
discretion,
its unfettered
an analysis of
motion to
respon-
is denied. The
reopening
Board’s reasons for not
dents,
counsel,
through
requested
have
sua
required.
not
we
their
laws,
country
this
and under our
we
sponte. We do not
find sufficient
typically
liberty
do
leave individuals’
grounds
reopening
here to warrant
bureaucrats,
“grace”
interests to the
J-J-,
matter sua sponte. See Matter of
even well-intentioned bureaucrats.
It
(BIA) 3323,
Interim Decision
1997 WL
only the rarest of cases where discretion is
(BIA 2997)[sic],
weAs
have de-
*8
See,
entirely
left
unfettered.
e.g., Abbott
reopen,
nied the
to
motion
the motion
Gardner,
136, 139-41,
Lab. v.
387 U.S.
87
stay
deportation
for
of
is also denied.
(1967) (discuss-
1507,
S.Ct.
1161
enforcement of the time and
any
by
created
certification,
provide
and it does
regulations,
in
number limits
the motions
to
BIA declined
why
the
as
explanation
extraordinary remedy reserved
but as an
power to
sponte
its sua
exercise
situations.”); In re L-
truly exceptional
had become
petitioner
the
case where
this
976,
V-K, 22 I. N. Dec.
including
argument
two-year
his
analogized to
prosecutorial
situations of
delay in processing his labor certification
discretion where there has been a decision
prevented
timely filing
proceedings.
him from
his mo- not to institute
In the BIA
98-70782,
29, 2000).
comprehensive analysis
2. A
why
(Sept.
more
the status
concerned that when an does not
act, judicial there will be no “focus for
review.” 470 at U.S. S.Ct. 1649.
In the instant BIA’s decision not when Mr. Ekimian was able to
present recently granted Labor Certifi- presents
cation Petition a clear focus for
judicial review.
Finally, majority taking position previously
that no circuit court has held. (1st Cir.1999),
In Luis v.
the First Circuit’s discussion of the BIA’s sponte power only dicta petitioner
because the in that case had
failed to exhaust her administrative reme-
dies. reasons,
For these I would conclude abused its discretion and remand
to the BIA for further proceedings. DIVISION,
PMG INTERNATIONAL
L.L.C., Plaintiff-Appellant, RUMSFELD,*
Donald H. in his official
capacity Secretary Defense; as the
Department Defense, Defendants-
Appellees.
No. 00-15652. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Feb. 2002. Sept.
Filed * pre- Department R.App. Donald H. Rumsfeld is substituted for his of Defense. Fed. P. decessor, Cohen, 43(c)(2). Secretary William S.