Singh-Bhathal v. Immigration & Naturalization Service

170 F.3d 943, 99 Daily Journal DAR 2529, 99 Cal. Daily Op. Serv. 1951, 1999 U.S. App. LEXIS 4360

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 1999
• Docket: No. 97-70502
• Status: Published

Opinions

Opinion by Judge KOZINSKI; Dissent in part by Judge KOZINSKI; Dissent by Judge NOONAN.

KOZINSKI, Circuit Judge (except as to Part V):

We review a decision of the Board of Immigration Appeals that an Immigration Judge who gains jurisdiction over a deportation proceeding pursuant to 8 C.F.R. § 103.5(a)(1) (1995) has authority to reconsider an order entered by the IJ who previously had jurisdiction over that proceeding.

I

On July 24, 1994, Gurcharan Singh-Kaur (Singh), a native and citizen of India, was taken into custody by the Immigration and Naturalization Service for entering the United States without inspection. The following day, Singh was served with an Order to Show Cause alleging he was deportable pursuant to 8 U.S.C. § 1251(a)(1)(B) (1994). Singh posted bail and was released from INS custody on August 1. On August 5, the Office of the Immigration Judge in Phoenix, Arizona, sent a Notice of Hearing by certified mail to Singh’s address in Bellevue, Washington, informing him that he was required to appear at a November 30th deportation proceeding. Pursuant to advice he received from a private immigration consultant, Singh did not appear for his deportation hearing. Instead, he filed an application for asylum with the INS Asylum Office in San Francisco, California, under the alias Gurcharan Singh-Bhathal. When Singh did not show up for his November 30th hearing in Phoenix, the IJ ordered him deported in absentia.

Some seventeen months later, in April 1996, the INS apprehended Singh in Belle-vue. Singh subsequently moved that his case be reopened and venue transferred to Seattle, Washington. On June 5, the IJ in Phoenix granted Singh’s motion to reopen and transferred venue to Seattle. In the meantime, the INS discovered that Singh had filed an asylum application under an alias, but determined that the application was invalid because he had been placed in deportation proceedings before he filed the asylum application. At the Seattle hearing, Singh conceded deportability and indicated he intended to apply for asylum. The INS moved for reconsideration of the Phoenix IJ’s order reopening Singh’s case. The Seattle IJ granted the INS’s motion after concluding that she had jurisdiction to reconsider the prior order. The Seattle IJ subsequently found that 8 U.S.C. § 1252b(c)(3)(A) barred Singh from having his case reopened because he had not filed his motion to reopen within 180 days of the final order of deportation and there were no exceptional circumstances to excuse his failure to appear at his deportation hearing.

On appeal, the BIA determined that the Seattle IJ had jurisdiction to reconsider the Phoenix IJ’s order to reopen pursuant to 8 C.F.R. § 103.5(a)(l)(ii) and affirmed the Seattle IJ’s order granting the INS’s motion to reconsider. Singh, timely petitions for review.

II

We first dispose of Singh’s argument that the INS’s failure to appeal the Phoenix IJ’s interlocutory order reopening his case rendered that order final. Interlocutory appeals are ordinarily not entertained by the BIA. See Matter of Correa, 19 I. & N. Dec. 130, 130, 1984 WL 48595 (BIA 1984). Contrary to Singh’s unsupported assertion, the INS was not foreclosed from moving for reconsideration by its failure to appeal the non-appealable order to the BIA.

III

Singh challenges the Seattle IJ’s jurisdiction to reconsider the Phoenix IJ’s rescission of the in-absentia deportation order entered on November 30, 1994. An IJ “may upon his/her own motion, or upon motion of the trial attorney or the respondent, reopen or reconsider any ease in which he/she had made a decision.” 8 C.F.R. § 242.22 (1995).¹ Singh appears to suggest that section 242.22 precludes an IJ who has not made a previous decision from ruling on subsequent motions to reopen or reconsider. Section 242.22, however, also provides that “[ejxcept as otherwise provided in this section, a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter.” Pursuant to 8 C.F.R. § 103.5(a)(l)(i), “when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision.” Section 103.5(a)(l)(ii), in turn, confers jurisdiction on the official “who made the latest decision in the proceeding unless the affected party moves to a new jurisdiction. In that instance, the new official having jurisdiction is the official over such a proceeding in the new geographical locations.” (emphasis added). Read together, sections 103.5(a)(i)-(ii) and 242.22 establish that the IJ with jurisdiction has discretion to reopen the proceeding or reconsider the prior decision upon the affected party’s motion.

The application of these regulations to Singh’s case is straightforward: Once the Phoenix IJ granted Singh’s request for a change of venue to Seattle, the Seattle IJ assumed jurisdiction over the case. Under subsection 103.5(a)(l)(i), the Seattle IJ had jurisdiction to grant the INS’s motion to reconsider the prior order reopening Singh’s case. We defer to an agency where its interpretation of its own regulations is neither clearly erroneous nor inconsistent with the regulations. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Abboud v. INS, 140 F.3d 843, 848-49 (9th Cir.1998). Here, we defer without hesitation because the regulations clearly granted the Seattle IJ jurisdiction to reconsider the Phoenix IJ’s order to reopen.

The dissent’s argument that section 242.22 limits jurisdiction over reopening or reconsideration to an IJ who has made a previous decision in the case is unsupported by the language or the logic of the INS’s regulations. Section 242.22 does not say that an IJ who has made a previous decision is the only IJ who may reopen or reconsider the case. And how could it? Under the dissent’s interpretation of section 242.22, a case could never be reopened or reconsidered if the IJ with initial jurisdiction quits, dies or, as here, loses jurisdiction upon granting the alien’s motion for transfer of venue. We decline to impose upon the INS such manifestly absurd results, especially where its interpretation of its own regulation is consistent with the regulation’s language and purpose.

The dissent also unjustifiably crabs section 242.22’s plain language. Section 242.22 states broadly that “a motion to reopen or reconsider shall be subject to the requirements of § 103.5 of this chapter.” Section 242.22 does not say, as the dissent would have it, that reopening or reconsideration is subject to those subsections of section 103.5 that contain the word “requirements” in their titles. Instead, section 242.22 incorporates section 103.5’s provisions for reopening and reconsideration and applies said provisions to IJs. Nothing in section 242.22 intimates that its reference to section 103.5 is meant to be read as narrowly as the dissent suggests, and we will not do so in the absence of clear language to the contrary.

8 U.S.C. § 1252b(c)(3)(A) states that if an alien has received written notice of his deportation hearing, yet fails to attend the hearing, a deportation order “may be rescinded only ... upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances.”² Where statutory language is unambiguous, we give effect to Congress’s expressed intent. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). There is no ambiguity to subsection 1252b(e)(3)(A): Provided that the alien has the requisite notice, failure to move for reopening within subsection 1252b(c)(3)(A)’s 180-day period precludes relief from deportation. There are no exceptions to this statutory time bar. Cf. In re A-A-, Interim Dee. 3357, 1998 WL 422064 (BIA July 16, 1998). Singh conceded that he had received written notice of the hearing, so he had 180 days from the date of the in-absentia deportation order to file his motion to reopen. As both the Seattle IJ and the BIA determined, the Phoenix IJ’s form order rescinding the prior deportation order was plainly incorrect because Singh’s untimely motion to reopen was absolutely barred by subsection 1252b(c)(3)(A). The Seattle IJ thus did not abuse her discretion in granting reconsideration.

IV

As we have found that the BIA correctly determined that the Seattle IJ had jurisdiction to vacate the Phoenix IJ’s erroneous order reopening the proceedings, Singh’s due process claim necessarily fails. Though Singh argues that the in-absentia order of deportation deprives him of a fair opportunity to present his asylum claims, he overlooks the fact that he was free to do so at the November 30th hearing he skipped without justification. Even if Singh had moved for reopening within 180 days of the deportation order, he could have justified his failure to appear at the deportation hearing only upon showing that exceptional circumstances excused his absence. See 8 U.S.C. § 1252b(c)(3)(A). The statute defines exceptional circumstances as those “beyond the control of the alien,” exemplified by “serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances.” Id. § 1252b(f)(2). Singh argues that the advice given him by the immigration consultant not to appear at the hearing constitutes an exceptional circumstance. In no sense, however, did the consultant’s advice render Singh’s ability to appear at the hearing beyond his control. Singh was informed that he was required to attend the November 30th hearing or be subject to immediate deportation, but he chose to heed the consultant’s advice and disregard the written notice provided by the INS.

Aithough Singh may have received poor advice, this does not alter the fact that he failed to appear at his hearing, not because of illness, a death in the family, or some similarly severe impediment, but because he took the word of the consultant over that of the INS. Singh "cannot complain of an order entered in absentia, ... if [he] `voluntarily choose[s] not to attend a deportation hearing which may affect [him] adversely." Sharma v. INS, 89 F.3d 545, 548 (9th Cir.1996) (quoting United States v. Dekerimenjian, 508 F.2d 812, 814 (9th Cir.1974)).

V

Singh contends that section 1252b does not preclude an untimely reopening where the petitioner seeks asylum. Though a BIA dissenter discussed this very issue in detail, Singh himself raises this claim for the first time on appeal, which constitutes "a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter." Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (quoting Vargas v. U.S. Dep't of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987)) (internal quotation marks omitted). Similarly, Singh's res judicata and public policy claims were not raised before the BIA in any fashion and, therefore, may not be reviewed by this court.

PETITION DENIED.

1 . Part 242's regulations are no longer in effect, but governed immigration judges' authority to reconsider cases at the time the Seattle IJ reconsidered the Phoenix IJ’s order reopening Singh’s case.

2 . 8 U.S.C. § 1252b was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 308(b)(6), Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-615, whose new rules do not apply to aliens such as Singh who were in exclusion or deportation proceedings as of April 1, 1997, see id. § 309(c)(1), 110 Stat. at 3009-625.