Petition for Review of a Final Order of the Board of Immigration Appeals. INS No. A42-361-655.
Before: William A. Norris, Robert R. Beezer and Stephen S. Trott, Circuit Judges. Opinion by Judge Beezer.
We are called upon to decide whether the Immigration and Naturalization Service may deny an alien his opportunity to designate a country of deportation and then hold this error harmless, predicting that the country he would have designated would not have accepted him. We hold that the INS may not deny an alien this opportunity nor rely upon such a prediction, and we grant the petition for review.
Dung Huu Bui petitions for review of the dismissal of his appeal by the Board of Immigration Appeals ("BIA"). Bui is a native and citizen of Vietnam who entered the United States with his mother and seven siblings in 1991, under lawful permanent resident status. After Bui pleaded guilty to robbery and received a 34 month sentence in 1993, the United States initiated deportation proceedings under 8 U.S.C. § 1251(a)(2)(A)(i). Informed of his right to counsel, Bui elected to represent himself at a very brief deportation hearing. Neither counsel for the Immigration and Naturalization Service ("INS") nor the immigration Judge ("IJ") knew of any relief from deportation for which Bui might be eligible. The IJ did not know of a country other than Vietnam that would accept Bui, and he ordered Bui deported to Vietnam without giving Bui an opportunity to make a designation of an alternative country.
On appeal, the BIA found that the IJ had committed error by failing to notify Bui of his right to designate a country of deportation. The BIA concluded, however, that Bui had failed to promptly designate a country on appeal, rendering the IJ's error harmless. The BIA also found that the IJ had no obligation to inform Bui of relief from deportation because the record did not raise a reasonable possibility of eligibility for such relief.
Bui challenges these findings on appeal and seeks attorney's fees under the Equal Access to Justice Act. 28 U.S.C. § 2412. We have jurisdiction under 8 U.S.C. § 1105a, and we grant the petition for review.
We review de novo the BIA's determination of purely legal questions, including the interpretation of the Immigration and Nationality Act. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). While we give some deference to the BIA's interpretation of the immigration laws, we are not obligated to accept an interpretation that is "demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute." Navarro-Aispura v. INS, 53 F.3d 233, 235 (9th Cir. 1995).
Under 8 U.S.C. § 1253(a), an alien has a right to designate a country of deportation. We have characterized the right as a substantive right and have found that the failure to afford an alien this right constitutes reversible error. Rodriguez-Agustin v. INS, 765 F.2d 782, 784 (9th Cir. 1985) (per curiam); Maldonado-Sandoval v. INS, 518 F.2d 278, 280 n.3 (9th Cir. 1975). INS regulations specifically require the IJ to provide an alien an opportunity to make this designation.*fn1 The INS must follow its own regulations. Duran v. INS, 756 F.2d 1338, 1342 (9th Cir. 1985).
The BIA found that Bui's failure to designate a country on appeal rendered the IJ's error harmless. Bui had no opportunity to make the designation before the IJ and had no notice that he should make a designation before the BIA.
The decisions of both the IJ and the BIA rested upon the assumption that no country other than Vietnam would accept Bui. This assumption was erroneous as a matter of law. Because the INS must wait a reasonable time for the designated country to accept, reject or ignore an alien's application before deporting the alien to another country, an IJ may not rely upon a prediction of which country may or may not accept the alien. That decision lies with the designated ...