Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A29 126 648
Before: Poole, Wiggins and T.g. Nelson, Circuit Judges.
Petitioner Evangeline Cabalquinto appeals from the February 28, 1992 decision of the Board of Immigration Appeals ("BIA") refusing to grant a continuance and granting voluntary departure. This court has jurisdiction pursuant to 8 U.S.C. § 1105a.
Despite petitioner's presentation of her appeal in terms of the errors of the Immigration Judge ("IJ"), "this court's review is limited to the decision of the BIA." Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991). "The BIA has the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence." Id. Decisions of the BIA which are committed to its discretion are reversible only if "the BIA's exercise of its discretion was arbitrary, irrational, or contrary to law." Kashefi-Zihagh v. INS, 791 F.2d 708, 709 (9th Cir. 1986). Questions of law are reviewed de novo, "but with deference to the BIA's interpretation of the statute." Ramirez-Ramos v. INS, 814 F.2d 1394, 1396 (9th Cir. 1987). By statute, this court must take the agency's findings of fact as conclusive "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4).
This court must be presented with a justiciable case or controversy in order for it to have subject matter jurisdiction. An issue is moot and nonjusticiable if it has "lost its character as a present, live controversy." Connolly v. Pension Ben. Guar. Corp., 673 F.2d 1110, 1113 (9th Cir. 1982) (quoting Hall v. Beals, 396 U.S. 45, 48, 24 L. Ed. 2d 214, 90 S. Ct. 200 (1969) (per curiam)).
There are several difficulties with the justiciability of petitioner Cabalquinto's appeal. First, by the time the BIA heard her appeal, it was incapable of granting her the relief she sought. On August 23, 1991, at the hearing before the IJ on her deportation, petitioner moved for a continuance until the BIA ruled on her appeal of the District Director's August 16, 1991 denial of an I-130 petition on her behalf. While the IJ denied the continuance, he stayed his order of voluntary departure until the appeal was heard, in essence, granting her a continuance. Petitioner then appealed his denial to the BIA. Had the BIA reversed the IJ and granted Cabalquinto a continuance in February, 1992, she would have had no more than she already had by virtue of the stay. This court, asked to review the same decision as was the BIA, is faced with the same powerlessness.
Second, by the time the BIA ruled on the appeal of the August 23, 1991 order, the BIA had already issued its decision denying the appeal from the denial of the I-130 petition. So once again, a reversal of the IJ with respect to the continuance would have had no effect -- Cabalquinto had already been permitted to remain in the country until the appeal was decided, which is what she sought by the continuance. Now, well after the I-130 petition was denied on appeal, this court also cannot give petitioner anything by ruling that the BIA incorrectly affirmed the denial of the continuance. The whole issue is moot.
Petitioner argued in her reply brief that the appeal is not moot because if the continuance had been granted, she would not now be subject to deportation. This is simply not true. Had the IJ, on August 23, 1991, granted her a continuance until her I-130 petition was appealed, that continuance would have expired on December 27, 1991 when the BIA denied her appeal, and she would have been subject to deportation proceedings at that time.
The only way petitioner's arguments make sense is if her motion for continuance until her I-130 petition was finally decided is interpreted as a motion for a continuance until any and all such petitions are decided. There is, however, no indication in the record that she actually sought such an indefinite continuance. Further, if Cabalquinto's original motion for continuance was indeed so broad, such that a review of its denial might not be moot, the BIA's affirmance of its denial is well within the agency's discretion. At the time of the denial, no second petition had been filed, and there was no indication that one was even contemplated. Petitioner offers no authority for her argument that the IJ must grant a continuance until a petition which has not yet been filed is adjudicated. If it was an abuse of discretion to deny a continuance until any and all petitions a party facing deportation chooses to bring, no one would ever be deported. It was not abuse of discretion for the BIA to interpret her motion as it was made and to deny it.
While the petition insofar as it seeks review of the motion for a continuance is moot, the BIA construed part of petitioner's appeal as a motion to remand, and its February 28, 1992 order contains a denial of a motion to remand. Cabalquinto argued to the BIA that it should reverse the IJ based on the information in her second I-130 petition, which was not before the IJ, and did not exist at the time she made her motion. The BIA rightly found that information not before the IJ was irrelevant to his discretionary decision to deny a continuance. However, the BIA generously construed her arguments regarding the second petition as a motion to remand and reopen the case in light of new evidence, i.e., the second petition. It then denied this motion to remand. Review of this aspect of the BIA decision would have genuine consequences for the parties. If this court were to reverse the BIA, and remand the proceeding to the IJ with orders to reopen the proceedings and consider the second petition, petitioner would receive the opportunity to introduce the information in her second petition and evidence of the August, 1993 grant of that petition, and to seek reversal of the deportation order.
While petitioner failed to argue explicitly in her briefs to this court for reversal of the decision to deny her implicit motion to remand, the relief she originally sought from this court is essentially the relief she would have received on remand. She sought an order of this court vacating the decision of the BIA and granting a continuance pending the final resolution of the second I-130 petition on her behalf. Thus, her appeal ...