Prado v. INS

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1999
• Docket: 99-1297
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit

                       ____________________

  

No. 99-1297



                       MARIA TERESA PRADO,



                           Petitioner,



                                v.



                  JANET RENO, ATTORNEY GENERAL 

                     OF THE UNITED STATES,

                                

                           Respondent.

                     

                      ______________________

                                 

             PETITION FOR REVIEW OF AN ORDER OF THE

                                

                  BOARD OF IMMIGRATION APPEALS

                      ______________________

                                

                             Before

                                

                     Torruella, Chief Judge,

               Wallace and Lynch, Circuit Judges.

                     ______________________

  

  Patrick D. O'Neill, with whom Martinez, Odell & Calabria was

on brief, for petitioner.

  Linda S. Wernery, Attorney, Office of Immigration Litigation,

with whom David W. Ogden, Acting Assistant Attorney General, and

Kristen A. Giuffreda, Senior Litigation Counsel, were on brief, for

respondent.


______________________

                                

                        December 8, 1999

                      ______________________

                                                                 

    LYNCH, Circuit Judge.  Maria Teresa Prado appeals from a

Board of Immigration Appeals (BIA) final order of removal, or more

specifically, from the BIA's dismissal of her motion to reopen

earlier proceedings that had resulted in a decision to remove her. 

She is the mother of two children, both U.S. citizens, and the wife

of a U.S. citizen. 

    Prado asserts two claims on appeal.  Her first claim is

that the BIA erred when it failed to exercise its authority under

8 C.F.R.  3.2(a) to reopen her case on its own motion, when her

motion to reopen was untimely.  The Immigration and Naturalization

Service (INS) asserts that jurisdiction over this claim is barred

by Immigration and Naturalization Act (INA)  242(a)(2)(B), 8

U.S.C.  1252(a)(2)(B), a permanent provision of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546.  INA

 242(a)(2)(B) states that "no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under .

. . [INA  245]."  Section 245 of the INA, 8 U.S.C.  1255, governs

adjustment of status, the relief ultimately sought by Prado.  If

 242(a)(2)(B) does not apply, the INS concedes there is statutory

jurisdiction under  242(b), 8 U.S.C.  1252(b).

    Prado also asserts that INS District Counsel should have

consented to her motion to reopen.  If he had done so, then the

untimeliness of her motion to reopen would have been forgiven.  See

8 C.F.R.  3.2(c)(3)(iii).  The INS argues that INA  242(g), 8

U.S.C.  1252(g), which states that "no court shall have

jurisdiction to hear any cause or claim . . . arising from the

decision or action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders," precludes our review

of this claim.

    We recently addressed similar jurisdictional questions

under IIRIRA's transitional rules in Mendes v. INS, No. 99-1226,

1999 WL 1045033 (1st Cir. Nov. 24, 1999), Luis v. INS, No. 99-1369,

1999 WL 997805 (1st Cir. Nov. 8, 1999), and Bernal-Vallejo v. INS,

No. 99-1211, 1999 WL 980300 (1st Cir. Nov. 2, 1999).  Much of the

logic of our analysis in those cases applies here.  In Bernal-

Vallejo, we held that "whether [IIRIRA]  309(c)(4)(E) precludes

jurisdiction depends on the precise grounds upon which the decision

of the [BIA] rests and the precise nature of the claims made in the

petition."  Bernal-Vallejo, 1999 WL 980300, at *1.  We hold today

that whether jurisdiction is removed by INA  242(a)(2)(B) requires

a similar inquiry, and that, in general terms, the section bars

the exercise of jurisdiction only where the BIA decision as to

which review is sought is a "judgment regarding the granting of

relief under" one of the enumerated sections.   

    In Prado's case, we conclude that INA  242(a)(2)(B) does

not preclude review of her claim that the BIA erred in failing to

reopen her case on its own motion.  Other doctrines, however, do

preclude our review.  

    We further hold that we lack jurisdiction to review

Prado's claim that INS District Counsel should have consented to

her motion to reopen.

                               I

    Prado is thirty-eight years old and is a native and

citizen of Venezuela.  She is married to a United States citizen

and has two children under age ten, both of whom were born in the

United States.  Prado entered the United States lawfully in

February, 1994, under a tourist visa which allowed her to visit

for five months.  She overstayed.  The INS instituted removal

proceedings against her with a Notice to Appear on April 4, 1997,

after she and her family had appeared before an INS officer in

San Juan to request information regarding what Prado needed to do

to become a citizen.  On September 16, 1997, in proceedings

before an Immigration Judge (IJ), Prado admitted that she had

overstayed her visa and requested relief in the form of voluntary

departure under INA  240B, 8 U.S.C.  1229c.  The IJ granted

this relief and allowed Prado to depart voluntarily by January

16, 1998, giving Prado the maximum period permitted under the

statute -- 120 days.  See INA  240B(a)(2).  Voluntary departure

was the only relief Prado sought before the IJ.  She did not at

that time seek adjustment of status based upon her marriage to a

U.S. citizen, presumably because she had not yet procured the

requisite immediate relative visa.  See INA  245(a); 8 C.F.R.

 245.2(a)(2).  Prado's counsel was also given written notice

that Prado's failure to depart by January 16, 1998, absent

compelling circumstances beyond her control, would result in her

being ineligible for various forms of relief, including

adjustment of status under INA  245.  If Prado wished to stay,

she had only 90 days to file a motion to reopen.  See 8 C.F.R. 

3.2(c)(2).

    On November 19, 1997, the INS approved an immediate

relative visa petition that Prado's husband had filed on her

behalf, rendering Prado eligible to apply for adjustment of

status.  A month later, on December 18, 1997, Prado did apply for

adjustment of status; however, she filed her application with the

INS District Director in Puerto Rico, when such an application

should have been filed, along with a motion to reopen, with the

IJ.  See 8 C.F.R.  245.2(a)(1).  Meanwhile, Prado had less than

one month remaining in her voluntary departure period.

    On January 7, 1998, nine days before her voluntary

departure date, Prado delivered a letter to the INS District

Director requesting an extension of the period "for the maximum

amount of time allowed under present regulations" so that she

could remain in the United States while her application for

adjustment of status was processed.  The District Director denied

this request, explaining that Prado had already been granted the

maximum allowable time for her period of departure.

    On March 19, 1998, Prado filed a motion with the IJ to

reopen her removal proceedings so she could apply for adjustment

of status.  She also requested the INS to join this motion.  The

INS opposed Prado's motion to reopen because Prado's term for

voluntary departure had lapsed and she had not voluntarily

departed.  On May 19, 1998, the IJ denied the motion.

    Prado appealed the denial of her motion to reopen to

the BIA.  On March 2, 1999, the BIA dismissed her appeal on the

ground that the motion had been filed late.  Prado's motion to

reopen needed to be filed within 90 days of the IJ's decision,

or, by December 15, 1997, but Prado had filed her motion to

reopen on March 24, 1998.  The BIA noted that even if Prado's

improperly filed application for adjustment of status were deemed

the equivalent of filing a motion to reopen, this application was

still filed three days late, on December 18, 1997.  Thus, the

request for adjustment of status has never been ruled on, largely

because Prado failed to take steps to present the issue in a

timely fashion.

II                              

    Prado raises two issues before this court.  First,

Prado asserts that given the exceptional circumstances of her

case, the BIA erred in failing to invoke its authority under 8

C.F.R.  3.2(a) to reopen her case sua sponte and allow her to

apply for adjustment of status.  Second, Prado appeals the INS

District Counsel's refusal to join her motion to reopen.  Both

parties agree that this case is subject to the jurisdictional

provisions of INA  242 because Prado was placed in deportation

proceedings after April 1, 1997.

    There is no dispute that Prado's motion to reopen was

untimely.  Prado relies on the only two avenues available that

provide mechanisms for consideration of such an untimely motion. 

First, under 8 C.F.R.  3.2(a), the BIA may reopen "on its own

motion any case in which it has rendered a decision."  Second,

under 8 C.F.R.  3.2(c)(3)(iii), the IJ could have entertained

Prado's untimely motion had the INS consented. 

A.  Challenge Based on BIA's Authority to Reopen Sua Sponte

    The INS contends that INA  242(a)(2)(B) bars this

court from hearing Prado's claim that the BIA should have invoked

its sua sponte authority to reopen her case.  We disagree.  

    The INS correctly points out that the prohibition in

INA  242(a)(2)(B), the permanent rule, is broader than the

prohibition in IIRIRA  309(c)(4)(E), the transitional rule.  INA

 242(a)(2)(B) bars review of "any judgment regarding the

granting of relief under" enumerated sections of the INA, while

IIRIRA  309(c)(4)(E) precludes judicial review of "discretionary

decisions under" enumerated sections of the INA.  Thus, the

permanent rules remove more than "discretionary decisions" from

review in the courts of appeals.  

    In Bernal-Vallejo, we held that review of certain non-

discretionary decisions, such as whether a minimum residency

period required for certain forms of relief, was not precluded

under IIRIRA  309(c)(4)(E).  See Bernal-Vallejo, 1999 WL 980300,

at *3.  The focus under INA  242(a)(2)(B), in contrast, is

on whether the BIA decision for which review is sought

constitutes a "judgment regarding the granting of relief under"

one of the enumerated sections.  See INA  242(a)(2)(B).  In this

case, then, the question is whether the BIA's dismissal of

Prado's appeal from the denial of the motion to reopen was a

"judgment regarding the granting of relief under" INA  245.  We

conclude that it was not.

    IIRIRA has presented the courts with a tangle of

difficult jurisdictional issues.  We have struggled to interpret

the provisions of the statute in light of congressional intent

and viewed against the backdrop of judicial rules of

interpretation.  See, e.g., Mendes, 1999 WL 1045033; Luis, 1999

WL 997805; Bernal-Vallejo, 1999 WL 980300; Wallace v. Reno, Nos.

98-2317, 99-1596, 1999 WL 959538 (1st Cir. Oct. 26, 1999);

Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998).  In Reno v.

American-Arab Anti-Discrimination Comm., 119 S. Ct. 936 (1999),

the Supreme Court taught that interpreting the jurisdiction

limiting provisions of IIRIRA requires a close textual reading

and that restrictions on jurisdiction should conform tightly to

the precise language chosen by Congress.  See id. at 943-45.

    The INS's reading of  242(a)(2)(B) as precluding

review of any decision related to relief under an enumerated

section is plausible.  But it is less plausible, we think, than

the reading we have chosen.  The decision as to which Prado seeks

review is not a BIA judgment on whether to adjust Prado's status,

which would be a "judgment regarding the granting of relief

under" an enumerated section, but is rather a decision not to

reopen under 8 C.F.R.  3.2.  The language of  242(a)(2)(B)

contrasts with the language of IIRIRA  309(c)(4)(G) that "there

shall be no appeal permitted in the case of an alien who is

inadmissable or deportable by reason of having committed [certain

enumerated offenses]."  This court has viewed that language as an

absolute bar to review.  See Ruckbi v. INS, 159 F.3d 18, 21 (1st

Cir. 1998).  The close reading required by American-Arab and

Congress's different choice of language leads us to conclude that

 242(a)(2)(B) does not preclude review here.

    Why, it might be asked, should review of a decision

under INA  245 not to grant an adjustment of status be

precluded, while judicial review of the denial of a motion to

reopen to petition for adjustment of status is permitted?  As

explained below, the window for review is narrow; because of

other doctrines of jurisdiction and judicial restraint, not all

denials of motions to reopen are reviewable.  But as to those

denials of motions to reopen that are otherwise reviewable, there

are several reasons supporting this distinction in our reading of

INA  242(a)(2)(B).  The INS has established procedures governing

motions to reopen an alien's case when new material information

becomes available.  See 8 C.F.R.  3.2(c)(1) (motion to reopen

must be accompanied by statement of new facts previously

unavailable); see also Wright v. Ouellette, 171 F.3d 8, 9 (1st

Cir. 1999) (failure to introduce previously unavailable, material

evidence is grounds for dismissing motion to reopen).  In pre-

IIRIRA cases, the denial of a motion to reopen was reviewed for

abuse of discretion.  See Ananeh-Firempong v. INS, 766 F.2d 621,

626-29 (1st Cir. 1985) (failure to reopen was an abuse of

discretion where alien had alleged new facts making her prima

facie eligible for relief).  The language chosen by Congress in

INA  242(a)(2)(B) does not evidence an intent to eliminate this

entirely rational, small safety valve -- court review that

ensures that the agency at least considers new information, even

if its ultimate and unreviewable judgment denies the relief

sought.  It may also be that Congress wished the agency to live

by its rules.  Congress may have desired court review to provide

a minimal control on administrative arbitrariness such as where a

motion to reopen is timely filed but the agency denies it on

grounds of untimeliness.  The space left open for judicial review

is quite narrow, but it is not irrational for the window to be

open a crack, if not wide open.

    Our reading is also consistent with the reasoning in

Bernal-Vallejo and with the reasoning of other circuits.  Arrozal

v. INS, 159 F.3d 429 (9th Cir. 1998), involved a BIA denial of a

motion to reopen to apply for suspension of deportation, a form

of relief enumerated in IIRIRA  309(c)(4)(E).  See Arrozal, 159

F.3d at 431.  The Ninth Circuit reasoned that the BIA's

discretionary denial of the motion was not a decision under the

section governing suspension of deportation, but instead was a

decision under the section pursuant to which the alien had been

ordered deported.  See id. at 432.  

    In this case, the BIA dismissed Prado's appeal because

she had filed her motion with the IJ after the 90 day period

required under 8 C.F.R.  3.2(c)(2) had expired.  The BIA never

reached the merits of Prado's application for adjustment of

status.  Thus, the BIA's decision was a judgment under 8 C.F.R.

 3.2(c), not INA  245.  Accordingly, INA  242(a)(2)(B) does

not preclude our review of Prado's claim that the BIA should have

invoked its sua sponte authority under 8 C.F.R.  3.2(a) to

reopen her case.  Prado's claim, however, is not reviewable for

other reasons.

    Neither in her motion to reopen nor in her appeal from

the denial of her motion to reopen did Prado request the BIA to

invoke its sua sponte authority under 8 C.F.R.  3.2(a).  Thus,

she did not exhaust her administrative remedies.  "Usually issues

not raised before the BIA may not be raised for the first time on

a petition for review."  Bernal-Vallejo, 1999 WL 980300, at *6;

see also INA  242(d)(1); Ravindran v. INS, 976 F.2d 754, 761

(1st Cir. 1992). 

    Even more importantly, because "the decision of the BIA

whether to invoke its sua sponte authority is committed to its

unfettered discretion,"  Luis, 1999 WL 997805 at *3, Prado's

claim is simply not justiciable.  See id. at *3-4; see also

Heckler v. Chaney, 470 U.S. 821, 831-33 (1985); Massachusetts

Pub. Interest Research Group, Inc. v. United States Nuclear

Regulatory Comm'n, 852 F.2d 9, 14-19 (1st Cir. 1988). 

    We also note that the plain meaning of the regulation

suggests that the BIA could not have invoked its sua sponte

authority on behalf of Prado.  The regulation allows the BIA to

reopen on its own motion "any case in which it has rendered a

decision."  8 C.F.R.  3.2(a).  In this case, the BIA had not

rendered any decisions until it denied Prado's appeal; only the

IJ had rendered a decision.  The regulation does not speak to the

BIA reopening on its own motion cases in which only an IJ has

rendered a decision.

B.  Challenge Based on the INS's Decision to Oppose Reopening

    The INS argues that INA  242(g) precludes our review

of the INS's decision not to join Prado's motion.  Because review

is precluded for other reasons, we do not address this question.  

    INA  242(b) grants this court jurisdiction to review

"order[s] of removal."  Pre-IIRIRA, jurisdiction in the courts of

appeals was also limited to review of BIA final orders.  See INA

 106, 8 U.S.C. 1105a (repealed); Cheng Fan Kwok v. INS, 392 U.S.

206, 212-13 (1968); Gottesman v. INS 33 F.3d 383, 386 (4th Cir.

1994); Lad v. INS, 539 F.2d 808, 809 (1st Cir. 1976).  The

District Counsel's decision in this case was not a final order of

removal, and  242(b) does not grant the courts of appeals

jurisdiction to review the underlying decisions of the INS.  See

American-Arab, 119 S. Ct. at 945 (nothing in INA  242

affirmatively grants jurisdiction to review the Attorney

General's decision to commence proceedings).

    Moreover, the INS's decision whether to consent to

reopening under 8 C.F.R.  3.2(c)(3)(iii) is not justiciable. 

The regulation prescribes no standards or guidelines for this

exercise of discretion, and, therefore, it is not subject to

review in this court.  See Luis, 1999 WL 997805 at *3-4.

    As is true with time limits that American citizens are

required to meet, Prado was held to time limits, and she failed

to meet them.  Whether the outcome -- removal from the United

States -- would have been the same had she complied with the time

limits and properly presented an application for adjustment of

status, no one knows.  Under the INA as amended by IIRIRA, sadly

she will either be separated from her family, or, in order to

stay together, she and her family will have to leave this

country.  Neither Congress nor the Constitution has given the

courts a role in this outcome.

    The petition for review is dismissed and the stay of

deportation is vacated.  So ordered.