Jorge E. Acosta-Montero v. Immigration and Naturalization Service

62 F.3d 1347, 1995 U.S. App. LEXIS 24810

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 5, 1995
• Docket: 93-5258
• Status: Published

Opinions

TJOFLAT, Chief Judge:

I.

Section 212(c) of the Immigration and Nationality Act (“INA” or “Act”), 8 U.S.C. § 1182(c), gives the Attorney General discretion to admit to the United States “[a]liens lawfully admitted for permanent residence who temporarily proceed[ ] abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile [in the United States] of seven consecutive years.... ” The Attorney General’s discretion under section 212(c) has been extended to cases of an alien already present in the United States, who has been declared deportable under INA § 241(a)(ll), 8 U.S.C. § 1251(a)(ll).¹ Section 241(a)(ll) renders deportable an alien “who at any time has been convicted of a violation of ... any law or regulation relating to the illicit possession of or traffic in narcotic drugs_”²

On February 18, 1986, appellant Jorge E. Acosta-Montero, an alien lawfully admitted for permanent residence who has maintained his residence here continuously since 1977, was convicted in federal district court of trafficking and conspiracy to traffic 200 grams of cocaine and was sentenced to concurrent prison terms of sixty-six months.³ On April 15, 1988 the INS initiated deportation proceedings under section 241(a)(ll) of the Act. The case was heard by an immigration judge on March 30, 1989. After the judge announced that Acosta-Montero’s convictions rendered him deportable, Acosta-Montero’s attorney sought, and was granted, leave to file an application for section 212(c) relief; specifically, a “waiver of deportation” by the Government so that he could remain in the United States.

The immigration judge denied Acosta-Montero’s application, and on August 6,1993, the Board of Immigration Appeals (the “Board”), concluding that the immigration judge had acted well within his discretion, dismissed Acosta-Montero’s appeal. The Board’s decision is not challenged in this appeal.

On September 13, 1993, Acosta-Montero moved the Board to reopen his deportation proceeding so that it could reconsider his application for section 212(c) relief. He contended that his family responsibilities had dramatically changed since the Board’s decision and asked that the Board remand his application to the immigration judge for a hearing. Specifically, Acosta-Montero stated that his father had been diagnosed with lung cancer on August 10, 1993, four days after the Board had dismissed his appeal. His father is a lawful permanent resident who resides with him and depends on him for financial support and transportation. No other family members are available to care for Acosta-Montero’s father.

On November 9,1993, the Board summarily denied Acosta-Montero’s motion. The Board held that, with the issuance of its decision on August 6, Acosta-Montero lost his lawful permanent resident status and thus was no longer eligible for section 212(c) relief. Accordingly, there was no reason for reopening Acosta-Montero’s deportation proceeding. Acosta-Montero now appeals.

II.

The precise question before us is whether the Board’s dismissal of Acosta-Montero’s appeal automatically foreclosed his right to seek section 212(c) relief. The courts of appeals are split on this question. Compare Nwolise v. INS, 4 F.3d 306, 312 (4th Cir.1993) (upholding Board’s rule), cert. denied, — U.S. -, 114 S.Ct. 888, 127 L.Ed.2d 82 (1994); Katsis v. INS, 997 F.2d 1067, 1075-76 (3d Cir.1993) (same), cert. denied, - U.S. -, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994); and Ghassan v. INS, 972 F.2d 631, 637-38 (5th Cir.1992) (same), cert. denied, — U.S. -, 113 S.Ct. 1412, 122 L.Ed.2d 783 (1993) with Henry v. INS, 8 F.3d 426, 439 (7th Cir.1993) (setting aside the Board’s rule); Goncalves v. INS, 6 F.3d 830 (1st Cir.1993) (same); Butros v. INS, 990 F.2d 1142, 1144-45 (9th Cir.1993) (en banc) (rejecting the Board’s rule and overruling Gonzales v. INS, 921 F.2d 236 (9th Cir.1990), which had accepted the rule); and Vargas v. INS, 938 F.2d 358, 362 (2d Cir.1991) (finding the Board’s rule arbitrary and capricious). We align ourselves with the circuits that have rejected the position the Board has taken in this ease.

A.

The circuits have disagreed about the standard under which the courts of appeals should review the Board’s decision in these cases. See, e.g., Butros, 990 F.2d at 1144 (labelling the question as “purely legal” and calling for de novo review); Katsis, 997 F.2d at 1070-71 (deferring to the Board’s interpretation if it is “permissible” or “not arbitrary or capricious”). In Jaramillo v. INS, 1 F.3d 1149, 1152-53 (11th Cir.1993) (en banc), which also involved an alien’s eligibility for section 212(c) relief, we relied on the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for the proposition that the Board’s interpretation is entitled to deference and will be upheld as long as it is reasonable. See also Henry, 8 F.3d at 434. Because Congress has not spoken directly to this question, the Board’s interpretation is entitled to deference, assuming it is reasonable.

B.

The INS regulation permitting an alien to file a motion to reopen or to reconsider any decision of the Board provides:

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.

8 C.F.R. § 3.2 (emphasis added). Acosta-Montero filed his motion to reopen his deportation proceedings pursuant to this regulation.

In summarily denying his motion to reopen, the Board relied on our Jaramillo decision as controlling authority. It is not. In Jaramillo, we considered the distinct question of whether an alien may accrue time towards section 212(c)’s seven-year residency requirement after a final order of deportation has been entered. 1 F.3d at 1150. To resolve this question, we considered the reasonableness of the Board’s decision in In re Lok, 18 I. & N. Dec. 101 (BIA 1981), aff'd on other grounds, 681 F.2d 107 (2d Cir.1982), that lawful domicile ends when an order of deportation becomes administratively final. We found the Board’s interpretation to be reasonable. Jaramillo, 1 F.3d at 1155. Jar-amillo means only that lawful permanent resident status terminates with the entry of a final order of deportation for purposes of fulfilling the seven years of lawful unrelin-quished domicile required for section 212(c) relief. Lok and its progeny, including Jar-amillo, do “not mean, however, that the alien’s ‘status’ must also ‘change’ for the purpose of his eligibility to ask for reopening.” Goncalves, 6 F.3d at 834.

The language of the regulation creates an absolute barrier to moving to reopen or reconsider only as to “a person who is the subject of deportation proceedings subsequent to his departure from the United States.” The administrative finality of the Board’s decision is simply not addressed.

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.

... What is crystal-clear is that as long as the Board may reconsider or reopen the case, the status of the petitioner in that case for purposes of section 212(c) relief has not been finally determined for purposes of action by the Board.

Butros, 990 F.2d at 1144-45. The Board “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.” Goncalves, 6 F.3d at 835.

The Third Circuit had no problem applying Lok’s finality rule to a case where the seven-year domicile requirement had been met. The court found the Board’s rule “permissible” “[i]f for no other reason than ease of application”⁴ because “it is reasonable to attempt to establish one single standard for the time an alien’s lawful permanent resident status changes for all purposes under section 212(c).” Katsis, 997 F.2d at 1073. In that court’s view, its bright-line rule “sets the last day through which an alien can manipulate deportation proceedings by his or her after-the-fact manufacture of additional evidence of equities to balance the adverse factor or factors he or she must overcome to receive discretionary relief under section 212(c).” Id. We are not persuaded by this reasoning.

Katsis assumes that aliens always manufacture evidence to support their applications for a discretionary waiver of deportation. Although some section 212(c) evidence may be subject to manipulation, not all changes in circumstances are fabricated (e.g., a family member’s death or illness). “ ‘Manufactured’ evidence can ... be weeded out when the Board considers whether to reopen proceedings in the exercise of its discretion. That concern therefore does not justify a rule precluding all evidence of changed circumstances at the outset.” Henry, 8 F.3d at 438.

Although the Board has broad discretion to deny motions to reopen, see INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 105-06, 108 S.Ct. 904, 912-13, 99 L.Ed.2d 90 (1988), it may not ignore its own regulations. The Board interprets this regulation in a manner that “amounts to an amendment of the regulation, made without the benefit of notice and the opportunity for public comment.” Henry, 8 F.3d at 439. We must hold the Board to the regulations the INS has adopted. “If the INS now wishes to adopt different regulations, that route is available to it.” Butros, 990 F.2d at 1146 (Fernandez, J., concurring).

We are not saying that Acosta-Montero has established a right to discretionary relief under section 212(c) and thus that the Board must reopen his deportation proceeding. We merely hold that, having established the requisite seven years of lawful unrelinquished domicile, he remains eligible to pursue section 212(c) relief. In sum, he is entitled to have his new evidence considered.

Because we find the Board’s interpretation of the INA and its own regulation to be unreasonable, the petition is GRANTED and the ease is REMANDED for further proceedings consistent with this opinion.

SO ORDERED.

1 . See, e.g., Melian v. INS, 987 F.2d 1521, 1523 (11th Cir.1993); Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir.1981); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976).

2 . The subsections that specify the grounds of deportability have been revised. Prior law, however, governs this case — Acosta-Montero’s order to show cause was served in April 1988.

3 .Acosta-Montero is a native of Costa Rica. He initially entered the United States in 1968 under a student exchange program. When the program was completed he returned to Costa Rica. In 1977, he reentered the United States as a lawful permanent resident.

4 . We agree with the Seventh Circuit's statement that "[w]hen a matter as serious as deportation from this country is at issue, we should not focus on ease of application, for 'easy' rules often pre-elude any inquiry into individual equities, which is what section 212(c) is all about.” Henry, 8 F.3d at 438 n. 17.