September 28, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1122 No. 92-2272
JOSE MANUEL GONCALVES,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Breyer, Chief Judge,
Selya and Stahl, Circuit Judges.
David Yavner for petitioner.
Donald Keener, Acting Assistant Director, with whom Stuart M.
Gerson, Assistant Attorney General, Civil Division, Anne C. Arries,
Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, and David M. McConnell, Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, were on brief for respondent.
BREYER, Chief Judge. The Board of Immigration
Appeals has a general procedural rule that says it "may . .
. reopen or reconsider any case in which it has rendered a
decision." 8 C.F.R. 3.2 (1993). In a series of cases,
however, the Board has developed an exception to this
procedural rule. The exception relates to a certain kind of
Board decision: whether or not to grant "discretionary
relief" which would permit an alien, otherwise "deportable,"
nonetheless to remain in the United States. Immigration and
Nationality Act (INA) 212(c), 8 U.S.C. 1182(c).
According to the procedural exception, once the Board has
denied the alien's initial "discretionary relief"
application (and thus the Board has finally found the alien
"deportable"), the alien may not ask the Board to reopen his
deportation proceedings for further consideration of his
application. See, e.g., Matter of Cerna, Int. Dec. 3161,
slip op. at 3-4 (BIA Oct. 7, 1991).
This appeal requires us to decide whether the
Board's "no reopening" exception to its ordinary "reopening"
rule is lawful. The Third and Fifth Circuits have held that
it is lawful. See Katsis v. INS, 997 F.2d 1067 (3d Cir.
1993); Ghassan v. INS, 972 F.2d 631, 637 (5th Cir. 1992),
cert. denied, 113 S. Ct. 1412 (1993); see also Cerna v. INS,
979 F.2d 212, 213 (11th Cir. 1992) (table), aff'g without
opinion Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).
The Second and Ninth Circuits have held that it is not. See
Butros v. INS, 990 F.2d 1142 (9th Cir. 1993) (en banc);
Vargas v. INS, 938 F.2d 358 (2d Cir. 1991). We, like the
latter two circuits, do not understand the basis for the "no
reopening" exception. In our view, the Board has not
properly explained why it will consider motions to reopen in
most cases but not in the particular circumstances
illustrated here. We therefore hold that the Board may not
invoke this exception as grounds for refusing to consider
the petitioner's motion to reopen in this case, and we
remand the case to the Board for further consideration of
that motion.
I
A. Legal Background
To understand the issue before us, the reader must
keep in mind the following legal background. First, the INA
lists a host of grounds for excluding or deporting aliens,
including conviction of a drug-related crime. See, e.g., 8
U.S.C. 1182(a)(2) (exclusion), 1251(a)(2)(B)
(deportation). The Act also says that a certain class of
these "deportable" aliens -- those who have lived here for
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seven years as aliens "lawfully admitted for permanent
residence" -- can ask the Attorney General (i.e., the Board,
see 8 U.S.C. 1103(a); 8 C.F.R. 3.0, 3.1(a), (b)(3),
212.3(a)(2), (e)(3) (1993)) to exercise a kind of equitable
discretion that would permit them to remain here even though
they have, for example, committed a drug crime. INA
212(c), 8 U.S.C. 1182(c) (see Appendix for text). The Act
defines the class of those eligible for this relief as those
who, for seven years,
hav[e] been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
8 U.S.C. 1101(20) (emphasis added) (defining "lawfully
admitted for permanent residence").
Second, an Immigration Judge (IJ) normally will
make the initial decision as to whether a particular alien
is "deportable," 8 C.F.R. 242.8(a) (1993), and if so,
whether he is eligible to apply for section 212(c)
"discretionary relief." Id. 212.3(a)(2), (e). If the
alien is eligible, the IJ will further decide whether, given
the "equities," the Attorney General will grant that relief.
Id.; Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978);
see generally 3 Charles Gordon & Stanley Mailman,
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Immigration Law and Procedure 74.01[2][a]-[b] (1993). If
dissatisfied with the result, the alien may appeal to the
Board of Immigration Appeals, 8 C.F.R. 3.1(b)(3),
212.3(e)(3) (1993), which may hold a hearing, take evidence
and decide the issues de novo. Hazzard v. INS, 951 F.2d
435, 440 n.4 (1st Cir. 1991); Matter of Lok, 18 I. & N. Dec.
101, 106 (BIA 1981); 1 Gordon & Mailman, supra,
3.05[5][b]. If the Board reaches a negative decision, the
regulations (while phrased negatively, see infra pp. 9 - 10)
indicate that the alien normally may ask the Board either to
reconsider its decision or to reopen the proceeding in light
of "circumstances which have arisen subsequent to the
hearing." 8 C.F.R. 3.2 (1993). The Supreme Court has
pointed out that the regulation governing motions to reopen
"does not affirmatively require the Board to reopen the
proceedings under any particular condition." INS v. Jong Ha
Wang, 450 U.S. 139, 144 n.5 (1981) (per curiam). The issue
before us, however, concerns not whether the Board must
grant the motion, but whether it must consider it.
Third, despite these regulations, the Board has
held in a series of cases that an alien, resident here
lawfully for seven years but under an administratively final
deportation order, may not ask the Board to reopen a
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proceeding ordering deportation to obtain further
consideration of "discretionary relief" under section
212(c). The Board has based these holdings on the theory
that a final Board decision ordering deportation means that
the alien's "status" has "changed." He is therefore no
longer "lawfully admitted for permanent residence," see 8
U.S.C. 1101(20), and thus falls outside the category of
those whom section 212(c) permits to ask for discretionary
relief. And since the alien would now be ineligible to
apply for section 212(c) relief in the first instance, see,
e.g., Rivera v. INS, 810 F.2d 540, 541 (5th Cir. 1987), the
Board reasons that he also may not move to reopen a
previously decided section 212(c) application. See, e.g.,
Katsis, 997 F.2d at 1069; Butros, 990 F.2d at 1143. The
Board does not, however, deny the alien the right to move
for reconsideration of the earlier section 212(c)
application. Cerna, slip op. at 5.
B. Factual Background
The case before us involves a resident alien, Jose
Manuel Goncalves, who entered the United States as a baby in
1968 and who has lived here ever since. He has committed
serious crimes, including drug crimes. In late 1989, the
INS began deportation proceedings. Goncalves conceded that
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he was deportable. Goncalves then asked the Attorney
General to exercise equitable discretion in his favor under
section 212(c). An IJ rejected this request on May 21, 1991
and ordered him deported. On January 8, 1992, the Board of
Immigration Appeals, after weighing the various equities for
and against Goncalves, also rejected the "discretionary
relief" request and affirmed the IJ, thus rendering
Goncalves' deportation order "final." 8 C.F.R. 243.1
(1993). Goncalves then moved to reopen the deportation
proceeding so that he could present letters and an
employment record that, in his view, amounted to new
evidence of his rehabilitation sufficient to change the
outcome of the Board's "discretionary" calculus.
After a series of proceedings not here relevant,
the Board, on October 8, 1992, denied the motion to reopen
on the sole ground that Goncalves, his "status . . . having
changed" by virtue of the Board's "final" deportation order
of January 8, 1992, was no longer "lawfully admitted for
permanent residence" and therefore "[could] not establish a
prima facie case for relief." The Board did not address the
merits of his request to reopen. Goncalves now appeals the
Board's denial of his motion to reopen. He argues that the
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law requires the Board at least to consider it. We believe
he is correct.
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II
Analysis
The Board's refusal to allow aliens to make
certain "reopening" motions is, in essence, a detail of its
procedure. In deciding the lawfulness of such a detail, we
recognize that Congress intended the Attorney General to
have considerable leeway in working out the precise
procedures for determining contested issues related to
deportation and "discretionary relief." 8 U.S.C.
1103(a), 1182(c). The Attorney General has delegated the
authority to work out such procedures to the Board. 8
U.S.C. 1103(a); 28 C.F.R. 0.115-0.117 (1991); 8 C.F.R.
3.0, 3.1(a), 3.1(d)(3) (1993). We therefore must respect
the Board's judgment in such matters. See, e.g., FCC v.
Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940); Union
of Concerned Scientists v. Nuclear Regulatory Comm'n, 920
F.2d 50, 54 (D.C. Cir. 1990); American Trucking Ass'ns v.
United States, 627 F.2d 1313, 1320-21 (D.C. Cir. 1980)
(deferring to agency regulations governing intervention on
ground that "procedural regulations are generally within the
discretion of the agency"); Wagner Seed Co. v. Bush, 946
F.2d 918, 920 (D.C. Cir. 1991), cert. denied, 112 S. Ct.
1584 (1992). The Administrative Procedure Act provides,
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however, that the Board may not act arbitrarily or "abuse"
its "discretion." 5 U.S.C. 706(2)(A). And, even though
we give the Board considerable leeway, we nonetheless
conclude that it has acted arbitrarily in this instance. We
reach this conclusion for the following three reasons, taken
together.
First, one of the Board's procedural regulations
strongly suggests that it will permit motions to reopen in
cases of this sort. The regulation first makes clear that
"[t]he Board may . . . reopen or reconsider any case in
which it has rendered a decision" (unless the motion is made
after the alien has left the United States). 8 C.F.R. 3.2
(1993) (emphasis added). The regulation then says the
following:
Reopening or reconsideration of any case in which a decision has been made by the Board, whether [or not] . . . requested 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
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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 . . . shall not be made by . . . a person who is the subject of deportation proceedings subsequent to his departure from the United States.
Id. We recognize that the regulation is phrased in negative
terms, which means that it does not explicitly grant any
right to anyone ever to ask to reopen a proceeding.
Nonetheless, consider the words
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 . . . unless the relief is sought on the basis
of circumstances which have arisen
subsequent to the hearing.
Id. (emphasis added). Coupled with the Board's explicit
authority to reopen any case, what could those words mean
but that the alien does have a right to move for reopening
to ask for "discretionary relief . . . on the basis of
circumstances which have arisen subsequent to the
rehearing"? See Butros v. INS, 990 F.2d 1142, 1144 (9th
Cir. 1993) (en banc) ("Board's regulations do say[] that you
may have a second round"). But cf. Katsis v. INS, 997 F.2d
1067, 1073 n.6 (3d Cir. 1993) (arguing that the emphasized
language is "hardly a rousing encouragement for or approval
of" using "evidence manufactured after the fact . . . to
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support a motion to reopen"). An agency, of course, has
every right to interpret its own rules. E.g., Stinson v.
United States, 113 S. Ct. 1913, 1919 (1993); Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). But
there are limits, set by what is "reasonable." Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 565-66 (1980);
Commonwealth of Massachusetts, Dept. of Public Welfare v.
Secretary of Agriculture, 984 F.2d 514, 524 (1st Cir. 1993)
("an administrative agency enjoys great latitude to
interpret its own rules as long as those interpretations are
reasonable") (emphasis added). And the agency must follow
its own rules, as reasonably interpreted. Arizona Grocery
Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370, 389-90
(1932).
Second, the Board, while claiming that its
exception is a reasonable "interpretation" of its
regulation, reached that interpretation by following a
complicated logical syllogism that, in our view, is either
irrelevant or erroneous. The syllogism runs approximately
as follows:
(1) The INA allows section 212(c) "discretionary relief" only upon the request of a resident alien whose "status" has not "changed." See 8 U.S.C.
1101(20), 1182(c); supra pp. 3 - 4.
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(2) The INA does not say just when, during a deportation proceeding, the alien's "status . . . change[s]."
(3) The Board thus has considerable legal leeway in interpreting the statute with respect to the precise time when "status . . . change[s]." Chevron U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1984); Matter of Cerna,
Int. Dec. 3161, slip op. at 10 (BIA Oct. 7, 1991) (citing Chevron).
(4) In Matter of Lok, 18 I. & N. Dec. 101, 106
(BIA 1981), and later cases, the Board held that a "status change" takes place at the time the Board enters a final deportation order. E.g., Nwolise
v. INS, No. 91-1173, slip op. at 4, 7 (4th Cir.
Sept. 3, 1993); Perez-Rodriguez v. INS, No. 92-
3081, slip op. at 5, 7 (7th Cir. Aug. 25, 1993); Rivera v. INS, 810 F.2d 540 (5th Cir. 1987); cases
cited supra pp. 2 - 3,
(5) Once that final deportation order is entered, then, since the alien's "status" has "changed" (see step (4)), the alien must be ineligible to
ask for discretionary relief.
(6) A motion to reopen amounts to a request for discretionary relief.
Therefore, (7) an alien whom the Board orders deported cannot ask the Board to reopen the proceeding to request discretionary relief.
The flaw in this syllogism is that step (4) does
not lead to step (5). The law permits the Board to decide
(within reason) when a "change of status" takes place, but
it also permits the Board to decide that moment differently
for different purposes. Cf. Butros, 990 F.2d at 1145
(discussing the "fallacy of . . . the belief that what is
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final for certain administrative purposes is final for all
purposes"). In Lok (the source of the problem), the Board
considered a substantive question, namely, whether or not a
person ordered deported after less than seven years of
lawful residence could continue to accrue time towards the
magic "seven years" while his deportation case was on
appeal. Lok, 18 I. & N. Dec. at 102-05. The Board sensibly
held that the "seven year" clock stopped ticking once the
Board ordered deportation. It found that his "status"
"changed" at that moment for the purpose of accruing time.
See Vargas, 938 F.2d at 361 ("Matter of Lok, therefore,
stands only for the proposition that an alien cannot become
eligible for discretionary relief through subsequent accrual
of time towards the seven-year threshold, once he has
conceded that he is deportable."); Lok v. INS, 681 F.2d 107
(2d Cir. 1982); Lok, 18 I. & N. Dec. at 105.
Lok does not mean, however, that the alien's
"status" must also "change" for the purpose of his
eligibility to ask for reopening. After all, the Board
itself agrees that the alien remains eligible to ask for
reconsideration. 8 C.F.R. 3.2 (1993); Matter of Cerna,
Int. Dec. 3161, slip op. at 5 (BIA Oct. 7, 1991). Even
after entry of the Board's "final" deportation order, the
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alien can call to the Board's attention evidence already in
the record in an effort to show that the Board's denial of
discretionary relief is unlawful or to convince it to
exercise its "discretion" differently. Cerna, slip op. at
5-6. Moreover, the alien remains free to appeal the denial
of discretionary relief to the courts. The entry of the
Board's final order does not "change" his "status" for this
purpose (if it did, it would moot the appeal by making it
impossible for the alien to receive "discretionary relief"
even if he wins). See Butros, 990 F.2d at 1145. In short,
Lok's substantive conclusion may or may not permit the
procedural exception to the Board's reopening regulations at
issue here, but it certainly does not require it.
Either the Board understands that step (4) does
not compel step (5) (i.e., that Lok and other "substantive"
change of status precedents do not legally compel its
present position on motions to reopen), or it does not
understand that. If it does not, then it has based its
procedural exception upon a legal misunderstanding, in which
case it must reconsider the matter. See Camp v. Pitts, 411
U.S. 138, 143 (1973) (per curiam); SEC v. Chenery Corp., 318
U.S. 80, 93-95 (1943) (where agency's decision rests, in
significant part, upon an incorrect view of what the law
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requires, court should set forth the correct view and remand
the case for new agency decision). If it does understand
that its procedural exception does not follow inevitably
from Lok, then it has failed to explain why it adopted that
exception, for its opinions on the matter, and its efforts
to justify the exception in court, rely in large part upon
Lok and a syllogism that is basically irrelevant. That
syllogism -- based upon the substantive "change of status"
statute, 8 U.S.C. 1101(20) -- is irrelevant because the
Board does not need to refer to the "change of status"
statute to justify its procedural "no reopening" exception
if that exception is reasonable, and reference to the
statute cannot help the Board justify the exception if that
exception is not reasonable. The basic question is the
reasonableness of the exception, not the intricate maze of
relationships between it and the substantive statute. And
the reasonableness of the exception seems doubtful, given
the fact that its finely-spun distinctions (e.g., allowing
reconsideration but not reopening) have virtually no
explanation apart from those based on the syllogism. See,
e.g., Cerna, slip op. at 5-7.
Third, we say "virtually" because the Board does
offer one practical consideration in an effort to answer the
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question "why is the 'no reopening' exception reasonable?."
It says that the exception is reasonable because it will
prevent aliens from "stringing out" their claims, i.e., by
removing the possibility of the alien's asking for a
reopening, the exception also removes the alien's temptation
to withhold some evidence initially in order to obtain
reopening after an adverse decision. Some courts have
accepted this justification. See, e.g., Katsis, 997 F.2d at
1072, 1074. We cannot do so, however, both because the
Board seems to rely more upon its logical syllogism than
upon this practical justification, see, e.g., Cerna, slip
op. at 3-7, and because the explanation itself raises fairly
obvious questions that the Board has not yet answered.
Why, for example, isn't the Board's printed
regulation -- limiting reopenings to those sought on the
"basis of circumstances that have arisen subsequent to the
hearing," see supra p. 10 -- sufficient to remove the
temptation to withhold evidence, thus obviating the Board's
practical concern? Why is the "stringing out" problem
greater where "discretionary relief" involving seven year
resident aliens is at issue than in other deportation cases?
Why is the "stringing out" problem greater in such cases
than where other "discretionary relief" matters, such as a
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request for suspension of deportation under INA 244(a),
are at issue? See 8 U.S.C. 1254(a); 8 C.F.R.
3.1(b)(2), 242.8(a), 242.22, 242.21(a), 244.1 (1993); 3
Gordon & Mailman, supra, 74.07[5][e], [7]. Why does the
Board absolutely forbid motions to reopen section 212(c)
discretionary relief applications? Does it really believe
that circumstances could never change enough, that even the
most heroic, public spirited, self-sacrificing action by a
seven year resident alien, after the "final" deportation
order, could not alter the outcome of the "equity" calculus?
We do not say that no satisfactory answers to these
questions exist, but we do say that the Board seems not to
have asked them.
We stress, and we well understand, that the
exigencies of the practical world in which the Board must
work require that we do not, and we will not, expect the
Board to answer every potentially relevant question
regarding its procedures. Here, however, the problem goes
beyond the fact that the Board has left obvious questions
unanswered. More fundamentally, the Board has not focused
directly on the basic question of whether or not the
particular procedure before us is desirable, nor has it
clearly explained its position. Further, it has instead
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unnecessarily relied on a logical syllogism involving a
theoretical analysis of its own cases interpreting a statute
of only marginal relevance to the problem, rather than
squarely facing the practical question of whether the
procedural exception is good or bad. Finally, it has acted
in the face of a regulation that seems rather clearly to
authorize the very kind of "reopening" motion that its cases
then deny. Taking all these circumstances together, we find
the practice insufficiently justified. That is to say, we
find no legally adequate explanation of why the Board has
departed from the rule set forth in its own regulation. We
therefore conclude that the Board's departure from that
regulation is "arbitrary," and we set it aside.
III
Relief
Having set aside the Board's exception that
absolutely forbids motions to reopen, we remand for
consideration of the petitioner's motion to reopen his case.
We shall not decide petitioner's further appeal of the
Board's basic decision to deport him until the Board decides
the motion to reopen.
We also have a suggestion. The circuit courts
have now split three to two about the lawfulness of the "no
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reopening" exception. Obviously, the Board will be tempted
to ask for Supreme Court review. There is, however, a
simpler way. Why does the Board not consider amending its
procedural regulations to reach the procedural result for
which it argues here? Cf. Butros, 990 F.2d at 1144 ("The
Board could, no doubt, alter this regulation . . . ."), 1146
(Fernandez, J., concurring) ("If the INS now wishes to adopt
different regulations, that route is available to it."). If
its exception makes sense, and it explains why that is so,
all courts would respect the result. If the exception does
not make sense, the Board will not adopt it, and that will
be the end of the matter. This suggestion is not, of
course, legally binding, and there may be sound reasons not
to follow it. Yet it seems to us to offer a fairly simple
way out of what has become something of a legal morass,
involving five courts of appeals threading their way through
minor procedural details of a highly complex subject.
The petition in No. 92-2272 for review of the
Board of Immigration Appeals' decision is granted, and the
case is remanded for further proceedings consistent with
this opinion. We do not reach the issues presented in No.
92-1122.
So ordered.
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APPENDIX
INA 212(c), 8 U.S.C.A. 1182(c) (West Supp. 1993),
provides in pertinent part:
Aliens lawfully admitted for permanent resident [sic] 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 without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)).
Although on its face this section applies only to resident
aliens who have temporarily left the United States and seek
readmission, case law has extended its application to
resident aliens who have not left the United States. See
Joseph v. INS, 909 F.2d 605, 606 n.1 (1st Cir. 1990);
Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of
Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).
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