Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A35-086-175.
Before: Wallace, Chief Judge, Canby, Reinhardt, Beezer, Hall, Brunetti, Noonan, O'Scannlain, Leavy, Trott and Fernandez, Circuit Judges. Opinion by Judge Noonan; Concurrence by Judge Fernandez, with whom Beezer and Hall join; Dissent by Judge Trott, with whom Brunetti joins.
Naim Butros petitions for review of a decision of the Board of Immigration Appeals (Board) dismissing his motion to reopen a denial of waiver of deportation. We grant the petition for review and remand for further proceedings.
Naim Butros entered the United States in February 1975. He was six years old. His status at the time of entry was that of a lawful permanent resident, that is, one having the "status of having 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(a)(20) (1988).
Since the date of his entry, Butros has lived continuously in the United States. His mother, father, brothers, and sister also live in the United States, and he presently resides at home with his family and is gainfully employed.
In 1987 he was convicted of a drug offense in Oregon, and the Immigration and Naturalization Service (INS) moved to deport him. At the hearing he conceded deportability and moved for discretionary relief under section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c), which reads as follows:
Aliens lawfully admitted for permanent residence 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 . . . .
Under case law discretionary relief may be extended not only to aliens seeking to return to the United States but also to resident aliens. Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976).
In an oral decision May 26, 1988, the immigration Judge found that Butros had not been rehabilitated and denied discretionary relief. He entered an order "that the respondent be deported from the United States to Syria." An appeal to the Board was filed on the same day.
On November 7, 1990, Butros's appeal was summarily dismissed by the Board pursuant to 8 C.F.R. § 3.1(d)(1-a)(i). The Board observed that it had received no written brief or statement of any kind from Butros although he was represented by counsel. The Board concluded that it had not been meaningfully informed of the basis of his appeal. Under the invoked regulation the Board was entitled to dismiss summarily whenever "the party concerned fails to specify the reasons for his appeal on Form I 290A."
Butros got a new lawyer and applied for a stay of deportation with the district director. The application was denied on January 3, 1991.
On January 9, 1991, Butros filed with the Board a motion styled "Motion to Reopen and Reconsider." This motion's opening sentence stated that he moved the Board "to reopen his deportation proceeding and to reconsider summary dismissal" of his appeal. He offered new evidence and also claimed ineffective assistance of counsel. He asked for a stay of deportation.
The Board denied the stay on January 23, 1991. Butros then filed a petition of habeas corpus in the United States District Court for the District of Oregon. On April 23, 1991, the court reversed the district director and the Board and ordered the INS to continue Butros on his existing bond. The district court observed that it could readily see that Butros's claim was "not frivolous." By refusing to grant the stay, the Board and the district director had acted "to effectively foreclose petitioner's right under 8 C.F.R. §§ 3.2, 3.8 to move to reopen this case." The district court concluded that the denial of the stay was an abuse of discretion.
On May 29, 1991, the Board gave its decision on Butros's motion to reopen and to reconsider. The Board held that the deportation order against Butros "became administratively final at the time of our November 7, 1990, decision in this case." The Board continued: "At that point the respondent lost his status as a lawful permanent resident of the United States. He is therefore no longer eligible for a section 212(c) waiver." The Board cited Gonzales v. INS, 921 F.2d 236 (9th Cir. 1990) as controlling. According to this decision, Butros no longer fitted the statutory description of an immigrant whose status had not changed.
Butros petitioned this court for review. The assigned panel requested an en banc hearing, which the court then voted to grant.
"We review de novo the Board's determination of purely legal questions regarding the requirements of the Immigration and Nationality Act." Abedini v. INS, 971 F.2d 188, 190-91 (9th Cir. 1992). Interpretation of the language "such status not having changed", found in the definition of lawful permanent residence, 8 U.S.C. § 1101(a)(20)(1988), is a purely legal question. It was the question decided by the Board. We review the Board's answer de novo.
The Board has issued a regulation on motions to reconsider or to reopen, 8 C.F.R. § 3.2, set out below in a footnote.*fn1 Most pertinent for our purposes are the title, "Reopening or reconsideration," followed by the provision that the Board on its own motion may "reopen or reconsider any case," and the provision for "reopening or reconsideration at the request of the Commissioner or any affected party." Also relevant is the explicit statement denying an opportunity to reopen "for any form of discretionary relief" 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."
8 C.F.R. § 3.2 (1992). An absolute barrier to moving to reopen or reconsider is created only as to "a person who is the subject of deportation proceedings subsequent to his departure from the United States." Id. The Board could, no doubt, alter this regulation to meet the uncertainties the Dissent envisages.
The salient aspect of the present regulation is that the right to move to reconsider or to reopen is in nowise limited by reference to the administrative finality of the Board's initial decision. 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.
The genesis of the Board's present self-contradictory position appears to be Matter of Lok, 18 I. & N. Dec. 101 (BIA 1981). In that case an alien who began to qualify for permanent lawful residence in 1971 was convicted of narcotic offenses in 1973 and ordered deported in 1976. Subsequent petitions travelled twice to the Second Circuit. In its 1981 decision the Board, understandably a little vexed, recast the question it had received on remand from the Second Circuit and decided that the petitioner, once he was found deportable by the Board, could not accumulate time that counted as lawful permanent residence. Id. at 104-05. Once the Board had decided that he was deportable, his status changed and he no longer fitted the definition of one "lawfully admitted for permanent residence" inasmuch as that definition specified "such status not having changed." Id.; 8 U.S.C. § 1101(a)(20)(1988).
The Board noted that to let an alien retain his status as a lawful permanent resident "throughout the judicial proceedings" would "encourage spurious appeals to the courts, made solely for the purpose of accumulating more time toward eligibility for § 212(c) relief." The Board also noted that to hold that an alien under a final order of deportation was still a lawful permanent resident led to results that were "inherently incongruous" such as the alien having the right to accord a designated relative a visa preference so long as the alien remained in this country. Finally, the Board noted that "in those relatively rare instances where the court determines that the Board erred," the reversal of the Board nullified its order and therefore restored the alien's lawful permanent resident status.
Matter of Lok was affirmed by the Second Circuit, Lok v. INS, 681 F.2d 107 (2d Cir. 1982), but, as the Second Circuit later noted, "on narrow grounds." Vargas v. INS, 938 F.2d 358, 361 (2d Cir. 1991). "We ruled that, for purposes of calculating the seven-year requirement, Lok's status as a permanent resident ended when he failed to appeal the Immigration Judge's finding of deportability." Id. at 361.
In our own Gonzales case, however, we expanded the reasoning of the Board's decision in Lok and held that the Board was right in denying Gonzales's motion to reopen a § 212(c) application for relief because she was statutorily ineligible once the Board had decided her initial appeal against her and upheld the Immigration Judge's order of deportation. Gonzales, 921 F.2d at 238. We did so although the issue of finality did not relate to the accumulation of credit as a resident, since Gonzales had entered the country when she was seven years old and had satisfied the seven-year requirement long before deportation proceedings began. Id. at 239. We emphasized as a policy reason that "if Section 212(c) were available to persons after an order of deportation is made final, then such applications would never end. ...