CA7 on burden of proving by a preponderance of the evidence that marriage was bona fide

Posted on June 24, 2015 by Mike Baker

The Board of Immigration Appeals applied too high a burden of proof when it determined that a conditional permanent resident’s marriage was not bona fide and the error warranted remand because the resident testified unequivocally that he did not marry his ex-wife to obtain residency but because he “loved her,” and if, as the Board assumed, the resident testified truthfully, then this testimony alone was enough to prove that his marriage was more likely than not bonafide; Because the resident and his ex-wife never appeared for the joint interview, any termination of his status would have been under 8 U.S.C.S. § 1186a(c)(2), and the burden of proof would have fallen not on the Attorney General but on the resident.

OUTCOME: Petition for review granted. Case remanded.

  • A denial of a good-faith marriage waiver is a discretionary decision and thus generally unreviewable, 8 U.S.C.S. § 1252(a)(2)(B)(ii), but a court of appeals has jurisdiction under § 1252(a)(2)(D) to consider an alien’s argument claiming that the Board of Immigration Appeals applied the wrong legal standard.
  • When the preponderance standard governs, some evidence would seem to preponderate over no evidence. Under the preponderance-of-evidence standard, one compelling witness can overwhelm ten contrary witnesses or a raft of papers, if the trier of fact chooses to believe the one witness and to disbelieve the ten.
  • While arguments made for first time in a reply brief are generally treated as waived, it does not follow that arguments that are better developed in the reply brief are waived.
  • An agency may not defend an administrative decision on a new ground not set forth in its original decision.

Lara, a citizen of Mexico, married a U.S. citizen in 1988. He gained conditional permanent residency based on that marriage but never completed the process necessary to obtain unconditional permanent residency, 8 U.S.C. 1186a(c). In 2008—10 years after divorcing his wife—he sought permanent residency through a discretionary waiver of the joint-petition requirements available to petitioners who can show that they had entered a failed marriage in good faith. He testified at the removal hearing that he had entered his marriage in good faith and the government offered no evidence to the contrary. Without making a credibility finding, the immigration judge determined that Hernandez’s marriage was not bona fide and ordered him removed. The Board of Immigration Appeals evaluated Hernandez’s appeal on the assumption that everything he said about his marriage was credible, but concluded that he had not met his burden of proving by a preponderance of the evidence that his marriage was bona fide. The Seventh Circuit granted relief. Given Lara’s testimony that he had married for love, not immigration benefits—and the government’s lack of evidence— the Board’s conclusion implies that it demanded from Hernandez more proof than necessary to satisfy a preponderance standard.

Record failed to support IJ’s removal order of alien, citizen of Mexico who had been married to U.S. citizen, where remand was ordered after IJ denied alien’s request for permanent residency through issuance of discretionary waiver under 8 USC section 1186(a)(C)(4)(B) for individuals who can show that they had entered into failed marriages in good faith. Bd. affirmed IJ’s denial of discretionary waiver based on legal error, where: (1) Bd. elected to credit all of alien’s testimony, including his contention that love, rather than residency, motivated him to accept former wife’s marriage proposal; (2) govt. failed to present any contrary evidence; and (3) under applicable preponderance of evidence standard, only conclusion that Bd. could logically reach was that alien’s marriage was bona fide.

Before the IJ, Hernandez testified that he met Diana in 1986, and, after dating for a time, they eventually moved in together. He explained that they married in January 1988 after Diana proposed marriage to him. He recounted that he and Diana lived together for about two months after the marriage. When asked why he married Diana, Hernandez answered that he “loved her a lot” and that he liked her body, her face, the way she dressed, and her housekeeping skills. He intimated that his relationship with Diana was stormy in that his disinterest in learning English angered his wife and created stress. He related that Diana disappeared for a time, but that, after this first falling out, they had an on-again, off-again relationship, which included their living together for a few months in 1994 or 1995 before they divorced in 1998. When asked whether he had married Diana to get residency, he answered, “No. Never.” He was also questioned about his drinking and history of driving under the influence (DUI) convictions, and Hernandez responded that he stopped drinking in 1999 or 2000 (the last time he was in jail). In attempting to explain the dearth of documentary evidence relating to his marriage, he said that he tried to get records showing that he and Diana handled their finances together and shared a post office box, but that the records were no longer available. He indicated that the wedding photographs had been stolen and that he recently had tried finding Diana with the help of a private investigator but that his efforts were unsuccessful. In addition, Hernandez presented the testimony of a friend who said that he had been to the couple’s home and knew that they lived together. DHS submitted no evidence.

Hernandez’s counsel argued before the IJ that, unless the IJ were to find Hernandez not credible, the evidence was sufficient to prove the bona fides of the marriage. Counsel maintained that any gaps in the evidence were attributable to the 25 years that passed since the 1988 marriage. In denying the waiver petition and ordering Hernandez’s removal, the IJ reasoned that he had not met his burden to prove by a preponderance of evidence that the marriage was bona fide. The IJ found that the evidence was not sufficiently detailed and inconsistent in certain respects. The IJ noted, among other things, that Hernandez testified that the marriage broke up because of his refusal to go out partying and drinking with his wife whereas Diana’s letter asserted that she was jealous that Hernandez was spending time with his male friends. However, the IJ made no express credibility finding other than crediting the petitioner’s testimony that he no longer drinks and that he had reformed his life. Before the BIA, Hernandez argued, inter alia, that the IJ had failed to apply the appropriate burden of proof when denying his waiver petition. The Board assumed the credibility of the petitioner and his witness but nevertheless affirmed the IJ’s ruling in light of the “paucity of record evidence supporting the [petitioner’s] claim that he entered his marriage in good faith.”

A denial of a good-faith marriage waiver petition is a discretionary decision and thus generally unreviewable, 8 USCA § 1252(a)(2)(B)(ii) (jurisdiction-stripping provision for discretionary decisions under the INA) and its prior decisions, including Bouras v. Holder, 779 F.3d 665 (7th Cir. 2015). However, CA7 had jurisdiction under 8 USCA § 1252(a)(2)(D) to consider the legal claim that the Board applied the wrong legal standard. The court proceeded to hold that the BIA’s analysis misapprehended the preponderance standard. It declared that if, as the Board assumed, Hernandez testified truthfully, then his testimony alone is enough to prove that his marriage with Diana was more likely than not bona fide. It cited to Lopez-Esparza v. Holder, 770 F.3d 606, 608-09 (7th Cir. 2014), which, in granting a petition for review and remanding on the ground that the IJ applied an incorrect burden of proof standard, observed that, when the preponderance standard governs, “some evidence would seem to preponderate over no evidence.” The court rejected the government’s contention that Hernandez had not adequately argued the preponderance standard before the Board and also disagreed with its argument premised on the 2005 REAL ID Act’s corroboration provision, codified at 8 USCA § 1229a(c)(4)(B), reasoning that neither the IJ’s nor the Board’s ruling rested on a determination that Hernandez had failed to provide available corroborative evidence. Indeed, the court chastised the government for violating the Chenery doctrine by endeavoring to defend an administrative decision on a new ground not set forth in the original decision. The court held that the petitioner’s other arguments, including his contention that the government disadvantaged him by not terminating his conditional residence earlier, were frivolous so as to merit only brief discussion.

________________________________________________________________________________

GERARDO HERNANDEZ LARA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 14-3305

United States Court of Appeals, Seventh Circuit.
Argued April 28, 2015.
Decided June 18, 2015.

Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Gerardo Hernandez Lara, a citizen of Mexico, married a U.S. citizen in 1988. Hernandez (the name he uses) gained conditional permanent residency based on that marriage but never completed the process necessary to obtain unconditional permanent residency. When placed in removal proceedings in 2008—ten years after divorcing his wife—he sought permanent residency through a discretionary waiver available to petitioners who can show that they had entered a failed marriage in good faith. Hernandez testified at the removal hearing that he had entered his marriage in good faith and the government offered no evidence to the contrary. Without making a credibility finding, the immigration judge determined that Hernandez’s marriage was not bona fide and ordered him removed. The Board of Immigration Appeals evaluated Hernandez’s appeal on the assumption that everything he said about his marriage was credible and yet went on to conclude that he had not met his burden of proving by a preponderance of the evidence that his marriage was bona fide. Given Hernandez’s testimony that he had married for love, not immigration benefits—and the government’s lack of evidence— the Board’s conclusion implies that it demanded from Hernandez more proof than necessary to satisfy a preponderance standard. That reasoning constitutes a legal error warranting remand, and thus we grant Hernandez’s petition for review.

I. BACKGROUND

Hernandez did not obtain conditional residency during his marriage because he and his wife, Diana Winger, never showed up for the joint interview that is generally a prerequisite to establishing the bona fides of a marriage and removing the conditions on residency. See 8 U.S.C. § 1186a(c), (d); 8 C.F.R. § 216.4(a). In 1990, Hernandez and Winger filed a joint petition to make Hernandez’ residency status permanent, and the required joint interview was scheduled for December 1990. (The joint petition, called a Form I-751, generally must be filed within the 90-day period before the second anniversary of the alien’s obtaining conditional permanent residency. 8 U.S.C. § 1186a(d)(2); 8 C.F.R. § 216.4(a)(1).) Winger did not appear for that interview; Hernandez told immigration officials in a sworn statement that Winger had left him a month and a half earlier because she was angry at him for working two jobs and coming home late, and that he had not seen her since. At Hernandez’s request the joint interview was rescheduled for November 1992, see 8 C.F.R. § 216.4(b)(3), but this time neither spouse showed. Hernandez mailed a letter explaining that he could not get to the interview because he was in jail (apparently for driving under the influence) but gave no explanation for Winger’s absence.

That was how things stood for 16 years until Hernandez stirred the hornet’s nest by filing a Form I-751 in 2008 with USCIS requesting a discretionary waiver of the joint-petition requirements (including the joint interview). An alien may obtain this waiver—and with it, unconditional permanent residency—if he can demonstrate that he entered a failed marriage in good faith and that he is not at fault for failing to satisfy the joint-petition requirements. See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii). As evidence that his marriage was bona fide, Hernandez submitted joint tax returns for 1988 and 1989, recent accounts from his friends recalling that they had seen the couple together, a “to whom it may concern” letter apparently signed by Winger and dated in 1991 announcing that the couple had “reconciled” their differences and were living together again, a letter dated in 1994 apparently signed by Winger stating that she was jealous because Hernandez was spending too much time with his friends, and his sworn statement from December 1990 explaining that Winger had left him and that he did not know where she was.

In early 2009, after interviewing Hernandez, USCIS denied his request for a waiver on the ground that he had “failed to establish or provide documentation” that his marriage was entered in good faith. The agency relied primarily on Hernandez’s “lack of evidence” but also noted that the couple was married in a civil ceremony attended by only one witness, that Hernandez’s sworn statement indicated that spending time with his wife was not a priority for him, that he did not know where his wife was when she failed to appear for the 1990 interview, and that the couple had no children. The agency terminated Hernandez’s status as a conditional permanent resident, and he was issued a Notice to Appear charging him with removability. See 8 U.S.C. § 1227(a)(1)(D)(i).

Hernandez conceded removability through his attorney at an April 2010 hearing and renewed his request for a discretionary waiver of the joint-petition requirements. In addition to the materials previously supplied to USCIS, he submitted his and Winger’s birth certificates; his driver’s license; the couple’s marriage certificate, divorce decree, and marital settlement agreement; records from the IRS confirming that the couple had filed joint tax returns in 1988 and 1989; records of his criminal history (mostly DUI charges) showing that his last run-in with the law was in 2000; and his tax returns for 1998 to 2011.

At a 2013 hearing before the IJ, Hernandez testified through a translator that he had met Winger in 1986 at a bar in Delavan, Wisconsin, and that, although he spoke little English and she spoke no Spanish, they began dating a week or two later. They continued seeing each other for the next year and a half and eventually moved in together. Hernandez said that Winger had proposed to him and they got married in January 1988, after living together for about two months. When asked why he had married Winger, Hernandez answered that he “loved her a lot.” Specifically, he said, he liked “[h]er body,” “[h]er face, the way she dressed,” and her housekeeping skills. He testified that during the marriage he was working hard to raise money for his parents in Mexico, but he did not immediately tell his mother of the marriage because, he explained, she did not have a telephone.

Hernandez said that his relationship with Winger had been stormy. He acknowledged that his disinterest in learning English had angered Winger and created stress. He and Winger liked going to restaurants and stores together, he said, but he did not have a lot of time for these activities because he was working two jobs. He recounted that, when Winger had disappeared before their first joint interview, he tried finding her by contacting her friends but was unsuccessful because none of them spoke Spanish. After this first falling-out, they had an on-again, off-again relationship, which included their living together for a few months in 1994 or 1995. Although their relationship was contentious, they did not divorce until 1998, Hernandez said, because he “had hopes of . . . getting back together with her.” When asked whether he had married Winger to get residency, he answered: “No. Never.”

When questioned about his drinking and history of DUIs, Hernandez testified that he had stopped drinking in 1999 or 2000 (the last time he was in jail). He quit drinking, he said, because his attending church and being in a relationship with a Mexican woman who had children “change[d] his life.”

Hernandez attempted to explain the dearth of documentary evidence related to his marriage. He said he had tried obtaining records showing that he and Winger handled their finances jointly and shared a post office box but that the records were no longer available. And there were no photographs of his wedding, he explained, because they were stolen from his apartment while he was in jail along with the money (five to six hundred dollars) that he kept in a folder with the photos. Hernandez said that he recently had tried finding Winger and even hired a private investigator, but that his efforts were unsuccessful.

A friend of Hernandez’s also testified but did not provide much information. He said that he knew about the marriage and had seen the couple in stores around town. He acknowledged that Hernandez had not talked with him about the marriage but said he had been to the couple’s home with them and knew they lived together.

The government submitted no evidence. Counsel for Hernandez argued during closing that—unless the IJ found Hernandez not credible—the evidence was sufficient to prove the bona fides of the marriage. Any gaps in Hernandez’s evidence, counsel maintained, were attributable to the 25 years that had passed since he and Winger had married. The government countered that Hernandez’s request for a waiver should be denied because, the government maintained, there was “little or no evidence” that the marriage was valid.

The IJ denied Hernandez’s petition for a waiver and ordered him removed to Mexico. Hernandez had not met his burden to prove by a preponderance that his marriage was bona fide, the IJ reasoned, because his “evidence was not sufficiently detailed and, at times, proved inconsistent” with documents he had submitted. Among the handful of inconsistencies identified by the IJ was Hernandez’s testimony “that the marriage broke up because of his refusal to go out partying and drinking with his wife,” which the IJ thought was at odds with Winger’s assertion in the 1994 letter that she was jealous that Hernandez was spending time with his male friends. The IJ also opined that Hernandez’s testimony that he had lost contact with Winger in 1995 and currently could not find her was inconsistent with Winger’s appearing in divorce court in 1998. The IJ emphasized throughout her analysis that Hernandez could not meet his burden of proof because, the IJ said, his testimony and other evidence were “vague” and lacking in “detail.” The IJ made no express credibility finding, however, except for the determination that Hernandez had “credibly testified that he no longer drinks” and that he had reformed his life.

Hernandez appealed the IJ’s decision, arguing (among other things) that the IJ had “failed to apply the appropriate burden of proof” when denying his waiver petition. The Board rejected this argument and the rest of Hernandez’s challenges. Recognizing that the IJ had not made an explicit credibility finding, the Board “assume[d] for the purposes of the appeal” that both Hernandez and the friend who testified were credible. But, the Board concluded, “even assuming the credibility of the respondent and his witness,” the IJ had correctly determined that Hernandez “did not meet his burden of proving by a preponderance of the evidence that he entered his marriage in good faith.” This was so, the Board explained, because Hernandez had “provided little detail” of his relationship with Winger and because there was “a paucity of record evidence supporting the respondent’s claim that he entered his marriage in good faith.”

II. ANALYSIS

In his petition for review, Hernandez contends that the Board held him to a burden of proof more onerous than the preponderance standard that an alien must satisfy to establish that a failed marriage was bona fide. A denial of a good-faith marriage waiver is a discretionary decision and thus generally unreviewable, see 8 U.S.C. § 1252(a)(2)(B)(ii), Bouras v. Holder, 779 F.3d 665, 670 (7th Cir. 2015); Boadi v. Holder, 706 F.3d 854, 857 (7th Cir. 2013), but we have jurisdiction under § 1252(a)(2)(D) to consider Hernandez’s argument because he claims that the Board applied the wrong legal standard. See Boadi, 706 F.3d at 857; Avila-Ramirez v. Holder, 764 F.3d 717, 722 (7th Cir. 2014); Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir. 2012).

We agree that the Board applied too high a burden of proof and that this error warrants remand. The Board concluded that, even if Hernandez testified truthfully about his marriage, he had not met his burden of proving by a preponderance that the marriage was bona fide because, the Board explained, he “provided little detail of his courtship of his wife or their wedding” and there was “a paucity of record evidence.” The Board’s analysis misapprehends the preponderance standard. Hernandez testified unequivocally that he did not marry Winger to obtain residency but because he “loved her.” If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide. See Lopez-Esparza v. Holder, 770 F.3d 606, 608-09 (7th Cir. 2014) (granting petition and remanding on ground that IJ applied incorrect burden of proof and observing that, when preponderance standard governs, “[s]ome evidence would seem to preponderate over no evidence”); Am. Grain Trimmers, Inc. v. Office of Workers’ Comp. Programs, 181 F.3d 810, 817-18 (7th Cir. 1999) (en banc) (explaining that, under preponderance-of-evidence standard, “[o]ne compelling witness . . . can overwhelm ten contrary witnesses or a raft of papers, if the trier of fact chooses to believe the one witness and to disbelieve the ten”); United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993) (stating, in context of criminal sentencing, that testimony of arguably biased witness found credible by judge is sufficient to support finding of fact by preponderance); United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir. 1989) (observing that “[c]redible testimony of one identification witness is sufficient to support a conviction” under more onerous beyond-a-reasonable-doubt standard); United States v. Noe, 411 F.3d 878, 889 (8th Cir. 2005) (“Credible and substantial testimony by an accomplice is sufficient to support a conviction, and can prove firearm possession under the preponderance of the evidence standard.” (citations and internal quotation marks omitted)). Because the Board elected to credit all of Hernandez’s testimony—including his assurance that love, not residency, motivated him to accept Winger’s proposal—the only conclusion it could then logically reach was that Hernandez’s marriage was bona fide. The Board’s failure to reach that conclusion is a legal error. See Lopez-Esparza, 770 F.3d at 609.

The government suggests that Hernandez never argued that the Board failed to correctly apply the preponderance standard and therefore waived the argument. We disagree with this contention. Hernandez repeats throughout the opening brief that the Board failed to correctly apply the preponderance standard. And again in his reply brief, Hernandez clearly states that “[n]either the Board nor the Immigration Judge made a finding that any of Mr. Hernandez’s evidence or testimony was not credible” and contends that in the absence of such a finding, he met his burden of proving the bona fides of his marriage by a preponderance of the evidence. These statements were sufficient to preserve the argument. See United States ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 837 & n.20 (7th Cir. 2011) (noting that while arguments made for first time in reply brief are generally treated as waived, it does not follow that arguments that are better developed in reply brief are waived); accord Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913 & n.9 (7th Cir. 2011).

One could argue, perhaps, that the IJ implicitly found Hernandez not credible and that the Board’s opinion should be read together with the IJ’s decision to conclude that the proper evidentiary standard was applied when denying Hernandez’s waiver application. But the IJ’s opinion is opaque with regard to whether the IJ found Hernandez credible. And in any event, because the Board evaluated this appeal on the assumption that Hernandez was credible, our decision cannot rest on the IJ’s supposed credibility findings. See Chen v. Holder, 578 F.3d 515, 517 (7th Cir. 2009); Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

The government’s lawyer also contended at oral argument that we should deny Hernandez’s petition because, the lawyer asserted, the REAL ID Act allows “that the applicant might be credible and still not meet their burden of proof.” We assume that the lawyer was referring to the fact that an IJ may demand corroborating evidence even from an alien whose testimony the IJ finds credible. See 8 U.S.C. § 1229a(c)(4)(B); Liu v. Holder, 692 F.3d 848, 853-54 (7th Cir. 2012); Abraham v. Holder, 647 F.3d 626, 633 (7th Cir. 2011). But this provision of the REAL ID Act is irrelevant here because neither the IJ’s nor the Board’s ruling rests on a determination that Hernandez had failed to provide available corroborating evidence. See Tandia v. Gonzales, 487 F.3d 1048, 1054-55 (7th Cir. 2007). Thus, by invoking the REAL ID Act, the government is once again violating the Chenery doctrine in its defense of a Board ruling, see SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (agency may not defend administrative decision on new ground not set forth in its original decision), despite our admonishments that flouting the doctrine is obstinate and invites sanctions, see Liu v. Holder, 718 F.3d 706, 709-10 (7th Cir. 2013); Chen v. Holder, 715 F.3d 207, 210 (7th Cir. 2013).

Hernandez’s remaining arguments are frivolous, meriting only brief discussion. He contends that he was prejudiced by the immigration authorities’ failure to deny the Form I-751 he filed jointly with Winger because, he says, had the authorities denied that petition, it would have been the immigration authorities’ burden under 8 U.S.C. § 1186a(c)(3)(D) to establish that his marriage was not bona fide. But this subsection applies only when an alien’s conditional residency is terminated after the alien files the petition and appears for a joint interview. See id. § 1186a(c)(3)(A), (C), (D). Because Hernandez and Winger never appeared for the joint interview, any termination of his status would have been under § 1186a(c)(2), and the burden of proof would have fallen not on the Attorney General but on Hernandez. See id. § 1186a(c)(2)(B).

Hernandez also maintains that, had his conditional residency been terminated earlier, he would have had more evidence of his marriage to Winger. But he points to no statute or regulation that was violated when the immigration authorities declined to terminate his status prior to his petitioning for a waiver of the joint-filing requirements. Nor does he identify any authority for the proposition that an alien can sit on his hands for years before seeking an immigration benefit and then blame the government for his inability to gather evidence because of the passage of time. Hernandez would have borne the same burden of proof under any of the scenarios he identifies, so he had every incentive to gather pertinent evidence when he first filed the joint petition.

Hernandez next contends that the Board ignored “key pieces of evidence,” but the only evidence he points to is a letter he wrote in 1995. He asserts that the Board’s failure to discuss the letter prejudiced him because, he says, the letter provides the details of his courtship that the Board said were lacking. But the letter is cumulative of—and no more detailed than—his testimony, and thus we do not see how the Board’s failure to mention it prejudiced Hernandez. He also asserts that his “case presents a question of law as to what the appropriate interpretation of the phrase `entered into in good faith’ entails,” but he does not elaborate on what this “question of law” is.

III. CONCLUSION

Accordingly, we GRANT the petition for review and REMAND the case to the Board for further proceedings.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, burden of proof, Good-Faith Marriage Waiver, I-751 petition, Joint Petition I-751, Marriage Fraud, Petition for Removal of Conditions on Conditional Residence, Removal of Conditions on Permanent Residency Based on Marriage, Waiver of Joint Petition Application | Leave a comment

LPR Returning to U.S. Cannot Be Regarded as Seeking Admission and May Not Be Charged with Inadmissibility

Posted on June 22, 2015 by Mike Baker

Distinguishing Koloamatangi, the BIA holds that LPR returning to U.S. is not seeking an admission and may not be charged with inadmissibility under 8 USCA § 1182(a).

In Matter of Pena, 26 I. & N. Dec. 613 (B.I.A. June 16, 2015), the Board of Immigration Appeals (BIA or Board ) held that an alien returning to the U.S. who has been granted lawful permanent resident (LPR) status cannot be regarded as seeking an admission and may not be charged with inadmissibility under INA § 212(a) [8 USCA § 1182(a)] (2012), “Classes of aliens ineligible for visas or admission,” if he or she does not fall within any of the exceptions in INA § 101(a)(13)(C) [8 USCA § 1101(a)(13)(C)] (2012):

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien–

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,

(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

Board Members Patricia Cole (who wrote the majority opinion) and Lisa Wendtland distinguished Matter of Koloamatangi, 23 I. & N. Dec. 548 (B.I.A. 2003), in which the Board held that an alien who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under INA § 240A(a) [8 USCA § 1229b(a)] (2000).

The respondent is a native and citizen of the Dominican Republic. He married a U.S. citizen who filed a visa petition on his behalf. Based on the September 1996 approval of the visa petition, the respondent filed an application for adjustment of status in December 1999. He indicated on his application that he had no prior arrests. However, at an interview in connection with his application, the government notified the respondent that its records showed that he had been charged with passport fraud by the Department of State passport office in December 1998. The respondent was asked to provide documentation regarding the final disposition of these charges, which he did. In June 2000, the respondent’s application for adjustment of status was granted and he was accorded LPR status.

In May 2010, the respondent sought to reenter the U.S. after a trip abroad. He gave a sworn statement in an interview with immigration officials. When asked whether he had ever been arrested, the respondent first replied that he had been arrested in 1998 for applying for a U.S. passport using the birth certificate and Social Security card of another person. When asked why he indicated on his adjustment of status application that he had never been arrested, the respondent said he thought he had not been arrested because he had voluntarily appeared at the passport office after learning from his wife that he was being investigated. He stated that he was fingerprinted at the passport office and released. He further explained that he was neither charged with nor convicted of passport fraud or any other offense.

After the respondent’s interview in May 2010, the Department of Homeland Security (DHS or Department) issued a notice to appear charging the respondent as inadmissible based on his alleged fraud and prior ineligibility for adjustment of status. At a hearing before an immigration judge (IJ), the respondent denied the charges. Applying Matter of Koloamatangi, the IJ determined that the respondent had never been accorded LPR status because he was ineligible for adjustment of status at the time he applied. Specifically, the IJ found that the respondent made a false claim to U.S. citizenship by knowingly purchasing an illegally obtained birth certificate and Social Security card and that he did not disclose his arrest on his adjustment of status application. Based on these findings, the IJ concluded that the respondent’s permanent resident status was unlawfully obtained and that he could therefore be deemed an “arriving alien” and charged under INA § 212(a). He then found the respondent inadmissible as charged and ineligible for relief from removal, and ordered him removed from the U.S.

Board Member Cole outlined the issue as follows:

The threshold issue in this case is whether the respondent, who was granted lawful permanent resident status, can be charged in removal proceedings under section 212(a) of the Act as an arriving alien seeking admission, since he does not fall within any of the exceptions listed in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012), which allow for an alien lawfully admitted for permanent residence to be regarded as seeking admission to the United States.

We must resolve the question whether a returning lawful permanent resident can be treated as an arriving alien based on an allegation that he acquired his status unlawfully. We conclude that an alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking admission and may not be charged with inadmissibility under section 212(a) of the Act if he does not fall within any of the exceptions in section 101(a)(13)(C) of the Act.

Board Member Cole first examined the language of the statute to determine whether Congress expressed a plain and unambiguous intent that aliens in the respondent’s circumstances should be considered applicants for admission under INA § 101(a)(13)(C). She determined that the plain language of INA § 101(a)(13)(C) indicates that an alien who does not fall within one of the statutory exceptions and who presents a colorable claim to LPR status is not to be treated as seeking an admission and should not be regarded as an arriving alien. She found further support for this position in BIA case law interpreting the Fleuti doctrine, which predated the enactment of INA § 101(a)(13)(C) by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in 1996. In Matter of Rangel, 15 I. & N. Dec. 789 (B.I.A. 1976), the Board held that (1) the rationale expressed by the Supreme Court in Fleuti regarding the effect of a brief departure from the U.S. on resident alien status applies in the case of a resident alien whose original entry was unlawful, (2) the applicant did not make an “entry” within the meaning of INA § 101(a)(13) when she attempted reentry into the U.S., and (3) the proper forum in which to adjudicate the lawfulness of her original admission therefore is in a deportation proceeding (rather than an exclusion proceeding), with the applicant entitled to the attendant safeguards thereof. Board Member Cole said:

The question addressed in Matter of Rangel is analogous to that now before us, namely, whether a returning permanent resident who is suspected of unlawfully acquiring his or her status should be placed in exclusion proceedings (now charged with inadmissibility) or deportation proceedings (now charged with deportability). Our decision in Rangel comported with the Supreme Court’s recognition of the constitutional right of due process that is owed to lawful permanent residents.

Prior to the 1996 enactment of section 101(a)(13)(C) of the Act, the proper forum for determining whether a lawful permanent resident had unlawfully obtained his status would have been a deportation proceeding, rather than an exclusion proceeding, unless he was making an “entry.” Applying the same rationale to the current law, an alien in the respondent’s circumstances should be charged under section 237(a) of the Act, rather than section 212(a), unless he can be regarded as seeking an admission under section 101(a)(13)(C).

However, the DHS is not precluded from charging an alien such as the respondent under section 237(a) of the Act. The grounds of deportability contain a provision that is clearly applicable to an alien who allegedly obtained his lawful permanent resident status through fraud or misrepresentations. See section 237(a)(1)(A) of the Act (providing that “[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable”); see also section 212(a)(6)(C) of the Act.

We conclude that the respondent, a lawful permanent resident who does not fall within one of the exceptions in section 101(a)(13)(C) of the Act, cannot be regarded as an arriving alien. Therefore, the charges brought by the DHS under section 212(a) of the Act should not have been sustained. Accordingly, we will sustain the respondent’s appeal and remand the record to give the DHS an opportunity to properly charge him under section 237(a) of the Act. If necessary, the Immigration Judge may then determine whether the respondent lawfully obtained his permanent resident status and allow him to apply for any relief from removal for which he may be eligible.

Board Member Roger Pauley dissented, based on his opinion that the majority improperly limited the holding in Koloamatangi. He opined:

Fortunately, not much damage will result from the majority’s erroneous decision. As the majority opinion observes, the Department of Homeland Security (“DHS”) may charge a returning lawful permanent resident who it believes has wrongly obtained his or her status as having been inadmissible at the time of adjustment of status. See section 237(a)(1)(A) of the Act. If such charge is upheld, Matter of Koloamatangi will apply to render the alien ineligible for relief to the extent relief is sought based on lawful permanent resident status. However, the majority decision does have a modicum of practical import because an alien charged under section 237(a) (as opposed to section 212(a)) may seek a waiver of deportability under section 237(a)(1)(H) of the Act, if he or she is subject to removal as having been inadmissible at the time of admission because of fraud. That section contains more generous provisions allowing for such a waiver than does the comparable provision at section 212(i) of the Act.

To the extent that the majority confers an advantage on the class of lawful permanent residents who wrongly obtained their status–as compared to the class of lawful permanent residents who obtained their status rightfully but are charged as applicants for admission under section 101(a)(13)(C)–I find it an unlikely expression of congressional intent. The former class, which includes the respondent in this case, generally represents a less deserving group inasmuch as they ordinarily will have obtained their status by fraud or other wrongful means.

____________________________________________

In a January 8, 2003, decision, the Board of Immigration Appeals (BIA) determined that an alien who acquires permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence,” and is therefore ineligible for cancellation of removal under INA § 240A(a). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003).

      The respondent acquired permanent resident status in 1985 by virtue of a bigamous marriage to a U.S. citizen, which resulted in the birth of a child. His marriage was knowingly bigamous because he was simultaneously married to a Tongan national. The Immigration Judge (IJ) pretermitted the respondent’s application for cancellation of removal under INA § 240A(a), finding that he was not eligible to apply for that form of relief although he was facially and procedurally in lawful permanent resident status for more than the requisite number of years needed to qualify. The IJ ruled that due to the respondent’s acquisition of lawful permanent resident status by fraud, the respondent was never, in a legal sense, an alien lawfully admitted for permanent residence. The respondent filed an appeal with the BIA asserting that his application for relief should be considered.

      The Board agreed with the IJ’s ruling, stating that “this case turns on the meaning of the term ‘lawfully admitted for permanent residence.”’ The Board noted that the definition of the term in INA § 101(a)(20) means, “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.” Turning to the definition of the same term in 8 CFR § 1.1(p), the Board pointed out that the regulation repeats verbatim the statutory definition and, pursuant to a 1996 amendment, includes the following final sentence: “[s]uch status terminates upon entry of a final administrative order of exclusion or deportation.”

      The BIA disagreed with the respondent’s argument that he qualified for § 240A(a) cancellation of removal because there was no final administrative order depriving him of permanent resident status. The Board pointed out that long before the final sentence was added to the regulation, its decision in Matter of T-, 14 I&N Dec. 12 (BIA, A.G. 1954), held that an alien who acquires permanent resident status through fraud or misrepresentation has not made a lawful entry upon which to base eligibility for relief. The Board found that Matter of T- was “clearly applicable” to the respondent’s situation, in contrast to the IJ’s reasoning that Matter of T- involved relief under former INA § 212(c), and was therefore “not on point.”

      The Board pointed out that consistent with Matter of T-, the U.S. Courts of Appeals for the Fifth and Ninth Circuits each decided that the term lawfully admitted for permanent residence did not apply to aliens who had obtained their permanent resident status by fraud, or had otherwise not been entitled to it. In Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983), and Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986), the courts reasoned that the aliens’ proposed *151 interpretation of the term, using the same argument advanced by the respondent, “distorts” the term’s meaning because “‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural regularity,” the BIA said, stressing that “[t]o our knowledge, no federal appellate authority or any subsequent Board precedent has held to the contrary.”

      The Board found the reasoning in Longstaff and Monet sound, and observed that the analysis in those cases survives the 1996 amendments to 8 CFR § 1.1(p). The BIA observed that when Congress abolished § 212(c) relief in 1996, and substituted similar requirements for the comparable relief of § 240A(a) cancellation of removal, it did not intend for “an alien who committed fraud in order to obtain such status, and whose fraud was not discovered until more than 5 years had passed, [to] rely on having obtained such status ‘lawfully’ to claim eligibility for relief.” To reach such a conclusion would be “illogical,” the Board said, stressing that nothing in the regulation’s final sentence changes its analysis. The BIA pointed out that the explanatory materials that accompanied the 1996 amendment to the regulation make clear that the final sentence was to codify its decision in Matter of Lok, 18 I&N Dec. 101 (BIA 1981), wherein it held that “an alien’s permanent resident status, which had been lawfully obtained, terminated with the entry of a final administrative order of deportation.” The Board noted too that the regulation was intended to overcome certain decisions of the Second and Ninth Circuits, which had held, in the context of a motion to reopen, that lawful permanent resident status did not terminate until an alien physically departed the U.S. “There is no indication that the addition of the final sentence was intended to undermine the long-standing decisions holding that an alien was not ‘lawfully’ admitted for permanent resident status if, at the time such status was accorded, he or she was not entitled to it,” the Board stated.

      The Board distinguished its decision in Matter of Ayala, 22 I&N Dec. 398 (BIA 1998), where it held that “the respondent, who does not yet have a final order of deportation, still enjoys the status of an alien who has been ‘lawfully admitted for permanent residence,”’ by pointing out that the statement was made in a factual setting similar to that in Matter of Lok, “where it was not alleged that the alien had acquired his permanent resident status unlawfully,” but had “subsequently been convicted of a federal offense that might cause him to lose his status.” (Footnote omitted.)

      The Board found the instant case different because the respondent had obtained his permanent resident status fraudulently, and was therefore never “lawfully” accorded the status required to establish eligibility for § 240A(a) cancellation of removal. The BIA found the regulatory sentence regarding when an alien’s lawful permanent resident status ends to be “inapposite to the issue at hand” because the respondent never lawfully acquired that status although he reaped its benefits until his fraud was discovered. The Board continued:

       [c]onsistent with Matter of T-, supra, and the Fifth and Ninth Circuit decisions cited above, we hold that the correct interpretation of the term “lawfully admitted for permanent residence” is that an alien is deemed, ab initio, never to have obtained lawful permanent resident status once his original ineligibility therefor is determined in proceedings. We perceive no basis for concluding that the Tenth Circuit, which appears not to have confronted this question, would reach a different outcome. [Footnote omitted. The BIA concluded that the respondent was ineligible for cancellation of removal under INA § 240A(a) because he was never lawfully admitted for permanent residence, and dismissed his appeal, which asserted his eligibility for that relief. The Board remanded the record to the IJ for further proceedings because the respondent has a U.S. citizen child and appears to be eligible to apply for a waiver under INA § 237(a)(1)(H). The Board also noted that despite doubts expressed by the IJ about the respondent’s good moral character, he might also be eligible for § 240A(b) cancellation of removal, and stated that if the IJ finds the respondent eligible for § 240A(b) cancellation, he might reconsider his denial of voluntary departure.

Posted in BIA, Board of Immigration Appeals, Seeking an Admission | Leave a comment

SCOTUS does not require government to identify a specific statutory provision nor give detailed explanation for denying a visa based on terrorism-related ground

Posted on June 16, 2015 by Mike Baker

Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

Held: The judgment is vacated, and the case is remanded.

Under the Immigration and Nationality Act (INA), as amended, 8 U.S.C.S. § 1101 et seq., an alien may not enter and permanently reside in the United States without a visa. 8 U.S.C.S. § 1181(a). The INA creates a special visa-application process for aliens sponsored by “immediate relatives” in the United States. 8 U.S.C.S. §§ 1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. 8 U.S.C.S. §§ 1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. 8 U.S.C.S. §§ 1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. 8 U.S.C.S. § 1361. One ground for inadmissibility, 8 U.S.C.S. § 1182(a)(3)(B), covers “terrorist activities.” In addition to the violent and destructive acts the term immediately brings to mind, the INA defines “terrorist activity” to include providing material support to a terrorist organization and serving as a terrorist organization’s representative. 8 U.S.C.S. § 1182(a)(3)(B)(i), (iii)-(vi).

The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law. Although the amount and quality of process that United States Supreme Court precedents have recognized as “due” under the Due Process Clause has changed considerably since the founding, it remains the case that no process is due if one is not deprived of “life, liberty, or property.”

Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act? No.

Issue: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

In 1972, the Supreme Court in Kleindienst v. Mandel first established the doctrine of consular nonreviewability. Aliens, it held, have no constitutional right of entry to the United States. On the contrary, Congress holds undisputed ”plenary power” to create rules for the admission of aliens to the country and may exclude whomever it sees fit. As a result of this clear delegation of power to Congress, federal courts as a rule may review the visa adjudications of consular officials only in sharply limited circumstances.

The Mandel Court, however, carved out one exception to this rule. When the denial of a visa implicates the constitutional rights of a U.S. citizen, courts will exercise a ”highly constrained” review solely to determine whether the consular official acted on the basis of a ”facially legitimate” and ”bona fide” reason. While these terms are vague, one circuit court has stated that visa decisions may be facially legitimate if the consulate identifies a properly construed statute and knows or has reason to believe that the visa applicant did something fitting within a forbidden category. The U.S. citizen’s implicated constitutional rights are not limited to strict categories and may include both First Amendment speech rights and a ”liberty interest” in marriage and family formation, among others.

Mandel considered a challenge to a U.S. consulate’s decision to deny a visa to Ernest Mandel, a Belgian academic, because he espoused communist ideologies. In its ruling, the Court underscored the First Amendment rights of the various U.S. professors who had invited him to the United States and would benefit from hearing and debating his views. Identifying this threatened right, the Mandel Court made the decision to review the consulate’s denial. This review, however, remained highly limited, to the dismay of the court’s three dissenters. So long as the visa denial was facially legitimate and bona fide, the Court refused to look behind the exercise of consular discretion or test it by balancing its justification against the First Amendment interests of the U.S. citizens involved. For Mr. Mandel, this was not good news; the Court upheld his visa denial, concluding that it was denied for the facially legitimate and bona fide reason that he openly ”advocated” the doctrines of ”world communism,” a ground for exclusion under then § 212(a)(28) of the Immigration and Nationality Act (”INA”).

Courts have largely adopted the Mandel Court’s hands-off approach to judicial review. Courts have opted to review the legitimacy of visa denials only in a small handful of cases implicating the constitutional rights of U.S. citizens. These rare exercises have deferentially applied the ”facially legitimate and bona fide” standard, resulting in virtually no reversals on visa decisions that allegedly violated a U.S. citizen’s rights.

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

Held: Under a historical understanding of the Due Process Clause, USC cannot possibly claim that the denial of Berashk’s visa application deprived her of life, liberty, or property. Even assuming she does, the notice she received satisfied due process. Given Congress’plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, the Government’s decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. Supporting this conclusion is the fact that, by Din’s own admission, Berashk worked for the Taliban government. These considerations lend to the conclusion that there was a bona fide factual basis for exclusion, absent an affirmative showing of bad faith on the consular officer’s part, which Din has not plausibly alleged.

Posted in Consular non-reviewability, Consular Nonreviewability Doctrine, SCOTUS | Leave a comment

SCOTUS affirms jurisdiction to decide equitable tolling of statutory time limit to file a motion to reopen a removal proceeding

Posted on June 15, 2015 by Mike Baker

Issue: Whether the Fifth Circuit erred in holding that it had no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably tolled the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

This case opens the door to immigrants whose cases were damaged by their lawyers’ ineffective assistance of counsel and the 90-day time limitation to file a Motion to Reopen removal proceedings has passed. The time begins to run when a noncitizen learns about the harm done, even if discovery comes after the 90-day limitation to file a Motion to Reopen the removal proceeding based on ineffective assistance of counsel.

After Mata, an unlawful alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed notice of appeal with the Board of Immigration Appeals (BIA), but never filed a brief; the appeal was dismissed. Acting through different counsel, Mata moved to reopen his removal proceedings, 8 U.S.C. 229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling. The BIA dismissed the motion as untimely and declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. The Fifth Circuit construed Mata’s equitable tolling claim as a request that the BIA exercise its regulatory authority to reopen the proceedings sua sponte, and, because its precedent forbids review of BIA decisions not to exercise that authority, dismissed for lack of jurisdiction. The Supreme Court reversed. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Nothing about that jurisdiction changes where the BIA rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit, or when the denial also contains a separate decision not to exercise its sua sponte authority. If Mata is not entitled to relief on the merits, the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. A federal court has a “virtually unflagging obligation” to assert jurisdiction where it has that authority; recharacterizing pleadings cannot be used to sidestep the judicial obligation to assert jurisdiction.

“An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. §1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. See Kucana v. Holder, 558 U. S. 233, 242, 253 (2010).”

“The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte.”

A federal court must assert jurisdiction when it has the authority to do so, rather than recharacterizing pleadings to avoid that obligation. Therefore, a federal court of appeals may review the Board of Immigration Appeals’ rejection of a non-citizen’s motion to reopen, even if the rejection was based on procedural grounds.

Download MATA v. LYNCH

______________________________________________________________________
NOEL REYES MATA, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL

No. 14-185.

SUPREME COURT OF THE UNITED STATES

2015 U.S. LEXIS 3919

April 29, 2015, Argued
June 15, 2015, Decided

NOTICE: This version is subject to revision.
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DISPOSITION: 558 Fed. Appx. 366, reversed and remanded.

After petitioner Noel Reyes Mata, an unlawful resident alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed a notice of appeal with the Board of Immigration Appeals (BIA or Board), but never filed a brief, and the appeal was dismissed. Acting through different counsel, Mata filed a motion to reopen his removal proceedings, as authorized by statute. See 8 U. S. C. §1229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, see §1229a(c)(7)(C)(i), Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling of the time limit. But the BIA disagreed and dismissed the motion as untimely. The BIA also declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. See 8 CFR §1003.2(a). On appeal, the Fifth Circuit construed Mata’s equitable tolling claim as an invitation for the Board to exercise its regulatory authority to reopen the proceedings sua sponte, and — because circuit precedent forbids the court to review BIA decisions not to exercise that authority — dismissed Mata’s appeal for lack of jurisdiction.

Held: The Fifth Circuit erred in declining to take jurisdiction over Mata’s appeal. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Kucana v. Holder, 558 U. S. 233, 253. Nothing about that jurisdiction changes where the Board rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit. That jurisdiction likewise remains unchanged if the BIA’s denial also contains a separate decision not to exercise its sua sponte authority. So even assuming the Fifth Circuit is correct that courts of appeals lack jurisdiction to review BIA decisions not to reopen cases sua sponte, that lack of jurisdiction does not affect jurisdiction over the decision on the alien’s motion to reopen. It thus follows that the Fifth Circuit had jurisdiction over this case.

The Fifth Circuit’s contrary decision rested on its construing Mata’s motion as an invitation for the Board to exercise its sua sponte discretion. Court-appointed amicus asserts that the Fifth Circuit’s recharacterization was based on the premise that equitable tolling in Mata’s situation is categorically forbidden. In amicus’s view, the court’s construal was therefore an example of the ordinary practice of recharacterizing a doomed request as one for relief that may be available. But even if equitable tolling is prohibited, the Fifth Circuit’s action was not justified. If Mata is not entitled to relief on the merits, then the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. For a court retains jurisdiction even if a litigant’s request for relief lacks merit, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89, and a federal court has a “virtually unflagging obligation,” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817, to assert jurisdiction where it has that authority. Nor can the established practice of recharacterizing pleadings so as to offer the possibility of relief justify an approach that, as here, renders relief impossible and sidesteps the judicial obligation to assert jurisdiction. Pp. 4-8. 558 Fed. Appx. 366, reversed and remanded.

JUDGES: KAGAN Click, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a dissenting opinion.

OPINION BY: KAGAN

OPINION

JUSTICE KAGAN Click for Enhanced Coverage Linking Searches delivered the opinion of the Court.

An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. §1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. See Kucana v. Holder, 558 U. S. 233, 242, 253 (2010). Notwithstanding that rule, the court below declined to take jurisdiction over such an appeal because the motion to reopen had been denied as untimely. We hold that was error.

I

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., and its implementing regulations set out the process for removing aliens from the country. An immigration judge (IJ) conducts the initial proceedings; if he orders removal, the alien has the opportunity to appeal that decision to the Board of Immigration Appeals (BIA or Board). §§1229a(a)(1), (c)(5). “[E]very alien ordered removed” also “has a right to file one motion” with the IJ or Board to “reopen his or her removal proceedings.” Dada v. Mukasey, 554 U. S. 1, 4-5 (2008); see §1229a(c)(7)(A). Subject to exceptions not relevant here, that motion to reopen “shall be filed within 90 days” of the final removal order. §1229a(c)(7)(C)(i). Finally, the BIA’s regulations provide that, separate and apart from acting on the alien’s motion, the BIA may reopen removal proceedings “on its own motion”—or, in Latin, sua sponte—at any time. 8 CFR §1003.2(a) (2015).

Petitioner Noel Reyes Mata is a Mexican citizen who entered the United States unlawfully almost 15 years ago. In 2010, he was convicted of assault under the Texas Penal Code. The federal Department of Homeland Security (DHS) immediately initiated removal proceedings against him, and in August 2011 an IJ ordered him removed. See App. 6-13. Mata’s lawyer then filed a notice of appeal with the BIA, indicating that he would soon submit a written brief stating grounds for reversing the IJ’s decision. But the attorney never filed the brief, and the BIA dismissed the appeal in September 2012. See App. 4-5.

More than a hundred days later, Mata (by then represented by new counsel) filed a motion with the Board to reopen his case. DHS opposed the motion, arguing in part that Mata had failed to file it, as the INA requires, within 90 days of the Board’s decision. Mata responded that the motion was “not time barred” because his first lawyer’s “ineffective assistance” counted as an “exceptional circumstance” excusing his lateness. Certified Administrative Record in No. 13-60253 (CA5, Aug. 2, 2013), p. 69. In addressing those arguments, the Board reaffirmed prior decisions holding that it had authority to equitably toll the 90-day period in certain cases involving ineffective representation. See App. to Pet. for Cert. 7; see also, e.g., In re Santa Celenia Diaz, 2009 WL 2981747 (BIA, Aug. 21, 2009). But the Board went on to determine that Mata was not entitled to equitable tolling because he could not show prejudice from his attorney’s deficient performance; accordingly, the Board found Mata’s motion untimely. See App. to Pet. for Cert. 7-8. And in closing, the Board decided as well that Mata’s case was not one “that would warrant reopening as an exercise of” its sua sponte authority. Id., at 9 (stating that “the power to reopen on our own motion is not meant to be used as a general cure for filing defects” (internal quotation marks omitted)).

Mata petitioned the Court of Appeals for the Fifth Circuit to review the BIA’s denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to “address the merits of Mata’s equitable-tolling . . . claim[ ].” Reyes Mata v. Holder, 558 Fed. Appx. 366, 367 (2014) (per curiam). It stated instead that “[i]n this circuit, an alien’s request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte.” Ibid. And circuit precedent held that courts have no jurisdiction to review the BIA’s refusal to exercise its sua sponte power to reopen cases. See ibid. The Court of Appeals thus dismissed Mata’s appeal for lack of jurisdiction.

Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. 1 We granted certiorari to resolve this conflict. 574 U. S. ___ (2015). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiae to defend the judgment below. 2 We now reverse.

FOOTNOTES

1 See, e.g., Da Silva Neves v. Holder, 613 F. 3d 30, 33 (CA1 2010) (per curiam) (exercising jurisdiction over such a petition); Iavorski v. INS, 232 F. 3d 124, 129-134 (CA2 2000) (same); Borges v. Gonzales, 402 F. 3d 398, 406 (CA3 2005) (same); Kuusk v. Holder, 732 F. 3d 302, 305-306 (CA4 2013) (same); Barry v. Mukasey, 524 F. 3d 721, 724-725 (CA6 2008) (same); Pervaiz v. Gonzales, 405 F. 3d 488, 490 (CA7 2005) (same); Hernandez-Moran v. Gonzales, 408 F. 3d 496, 499-500 (CA8 2005) (same); Valeriano v. Gonzales, 474 F. 3d 669, 673 (CA9 2007) (same); Riley v. INS, 310 F. 3d 1253, 1257-1258 (CA10 2002) (same); Avila-Santoyo v. United States Atty. Gen., 713 F. 3d 1357, 1359, 1362-1364 (CA11 2013) (per curiam) (same). Except for Da Silva Neves, which did not resolve the issue, all those decisions also held, on the merits, that the INA allows equitable tolling in certain circumstances. See infra, at 7-8. 2 We appointed William R. Peterson to brief and argue the case, 574 U. S. ___ (2015), and he has ably discharged his responsibilities.

II

As we held in Kucana v. Holder, circuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding. See 558 U. S., at 242, 253. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U. S. C. §1252(a)(1); 28 U. S. C. §2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U. S. C. §1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order”). Indeed, as we explained in Kucana, courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts’ jurisdiction over BIA rulings, it left that authority in place. See 558 U. S., at 242-251.

Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.

Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien’s statutorily authorized motion, states that it will not exercise its separate sua sponte authority to reopen the case. See supra, at 1-2. In Kucana, we declined to decide whether courts have jurisdiction to review the BIA’s use of that discretionary power. See 558 U. S., at 251, n. 18. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft, 371 F. 3d 246, 249-250 (CA5 2004); Tamenut v. Mukasey, 521 F. 3d 1000, 1003-1004 (CA8 2008) (en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board’s ruling on the alien’s motion. That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien’s request).

It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for timeliness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte.

Nonetheless, the Fifth Circuit dismissed Mata’s appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata’s motion as something it was not: “an invitation for the BIA to exercise” its sua sponte authority. 558 Fed. Appx., at 367; supra, at 3. Amicus’s defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 14-35. Given that is so, amicus continues, the court acted permissibly in “recharacteriz[ing]” Mata’s pleadings. Id., at 36. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” Id., at 35, 38. And here (amicus concludes) that meant construing Mata’s request for equitable tolling as a request for sua sponte reopening — even though that caused the Fifth Circuit to lose its jurisdiction.

But that conclusion is wrong even on the assumption—and it is only an assumption—that its core premise about equitable tolling is true. 3 If the INA precludes Mata from getting the relief he seeks, then the right course on appeal is to take jurisdiction over the case, explain why that is so, and affirm the BIA’s decision not to reopen. The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“[T]he absence of a valid . . . cause of action does not implicate subject-matter jurisdiction”). The Fifth Circuit thus retains jurisdiction even if Mata’s appeal lacks merit. And when a federal court has jurisdiction, it also has a “virtually unflagging obligation . . . to exercise” that authority. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). Accordingly, the Court of Appeals should have asserted jurisdiction over Mata’s appeal and addressed the equitable tolling question.

FOOTNOTES

3 We express no opinion as to whether or when the INA allows the Board to equitably toll the 90-day period to file a motion to reopen. Moreover, we are not certain what the Fifth Circuit itself thinks about that question. Perhaps, as amicus asserts, the court believes the INA categorically precludes equitable tolling: It is hard to come up with any other reason why the court construes every argument for tolling as one for sua sponte relief. See Brief for Amicus Curiae by Invitation of the Court 2, 10, 14, n. 2. But the Fifth Circuit has stated that position in only a single sentence in a single unpublished opinion, which (according to the Circuit) has no precedential force. See Lin v. Mukasey, 286 Fed. Appx. 148, 150 (2008) (per curiam); Rule 47.5.4 (2015). And another unpublished decision cuts in the opposite direction, “hold[ing] that the doctrine of equitable tolling applies” when exceptional circumstances excuse an alien’s failure to meet the 90-day reopening deadline. See Torabi v. Gonzales, 165 Fed. Appx. 326, 331 (CA5 2006) (per curiam). So, in the end, it is hard to say.

Contrary to amicus’s view, the practice of recharacterizing pleadings so as to offer the possibility of relief cannot justify the Court of Appeals’ alternative approach. True enough (and a good thing too) that courts sometimes construe one kind of filing as another: If a litigant misbrands a motion, but could get relief under a different label, a court will often make the requisite change. See, e.g., 12 J. Moore, Moore’s Federal Practice, §59.11[4] (3 ed. 2015) (explaining how courts treat untimely Rule 59 motions as Rule 60 motions because the latter have no time limit). But that established practice does not entail sidestepping the judicial obligation to exercise jurisdiction. And it results in identifying a route to relief, not in rendering relief impossible. That makes all the difference between a court’s generously reading pleadings and a court’s construing away adjudicative authority.

And if, as amicus argues, that construal rests on an underlying merits decision — that the INA precludes any equitable tolling — then the Court of Appeals has effectively insulated a circuit split from our review. Putting the Fifth Circuit to the side, all appellate courts to have addressed the matter have held that the Board may sometimes equitably toll the time limit for an alien’s motion to reopen. See n. 1, supra. Assuming the Fifth Circuit thinks otherwise, that creates the kind of split of authority we typically think we need to resolve. See this Court’s Rule 10(a). But the Fifth Circuit’s practice of recharacterizing appeals like Mata’s as challenges to the Board’s sua sponte decisions and then declining to exercise jurisdiction over them prevents that split from coming to light. Of course, the Court of Appeals may reach whatever conclusion it thinks best as to the availability of equitable tolling; we express no opinion on that matter. See n. 3, supra. What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.

For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

DISSENT

JUSTICE THOMAS, dissenting.

The Court’s opinion in this case elides an important distinction between construing a court filing and recharacterizing it. See Castro v. United States, 540 U. S. 375, 386 (2003) (SCALIA Click for Enhanced Coverage Linking Searches, J., concurring in part and concurring in judgment) (discussing this distinction). Courts routinely construe ambiguous filings to make sense out of them, as parties — both counseled and uncounseled — sometimes submit documents lacking even rudimentary clarity. See, e.g., Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227, 1287 (MD Ala. 2013) (“The filings and arguments made by the plaintiffs on these claims were mystifying at best”). Recharacterization is something very different: It occurs when a court treats an unambiguous filing as something it is not. That practice is an unusual one, and should be used, if at all, with caution. See Castro, 540 U. S., at 385-386 (opinion of SCALIA Click for Enhanced Coverage Linking Searches, J.). Courts should not approach recharacterization with a freewheeling attitude, but with “regard to the exceptional nature of recharacterization within an adversarial system.” Ibid. Recharacterization has, for example, been used “deliberately to override a pro se litigant’s choice of a procedural vehicle.” Id., at 386 (disapproving of the practice). But it is not the role of courts to “create a ‘better correspondence’ between the substance of a claim and its underlying procedural basis.” Ibid.

In my view, then, it makes all the difference whether the Court of Appeals here properly construed an ambiguous motion or recharacterized an unambiguous motion contrary to Mata’s stated choice of procedural vehicle. Although the majority’s opinion does not address this point, Mata’s motion to reopen does not expressly state whether he was invoking statutory relief under 8 U. S. C. §1229a(c)(7)(A) or instead requesting sua sponte reopening under the Board of Immigration Appeals’ asserted inherent authority. Had the Court of Appeals engaged in the discretionary action of construing that ambiguous filing, it might not have abused its discretion by concluding that Mata really meant to ask for sua sponte reopening rather than equitable tolling of the statutory time bar.

The Court of Appeals, however, did not purport to construe an ambiguous motion. Instead, it applied what appears to be a categorical rule that all motions to reopen that would be untimely under §1229a(c)(7)(A) must be construed as motions for sua sponte reopening of the proceedings. See 558 Fed. Appx. 366, 367 (CA5 2014) (per curiam) (“In this circuit, an alien’s request for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte”). That rule would appear to foreclose a litigant from ever filing an untimely statutory motion to reopen removal proceedings seeking equitable tolling, as well as to invite improper recharacterization in the event any such a motion is filed. The Court of Appeals should have assessed Mata’s motion on its own terms. It erred in not doing so.

The reason it erred, though, has nothing to do with its fidelity to our precedents discussing “the judicial obligation to exercise jurisdiction,” ante, at 7. That obligation does not allow evasion of constitutional and statutory jurisdictional prerequisites. It is true that “when a federal court has jurisdiction, it also has a ‘virtually unflagging obligation to . . . exercise’ that authority.” Ibid. (quoting Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976)). But that “unflagging obligation” arises only if a court actually has jurisdiction. Federal courts have no obligation to seek out jurisdiction, nor should they misconstrue filings to satisfy jurisdictional requirements. Rather, federal courts should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the record.” See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342, n. 3 (2006). And they should apply the ordinary rule that the party asserting federal jurisdiction bears the burden of proving that jurisdictional prerequisites are met. Ibid. The practice of construing filings does not alter the usual rules of establishing jurisdiction in federal court.

I would vacate and remand for the Court of Appeals to consider the BIA’s judgment without the burden of what appears to be a categorical rule demanding that Mata’s motion be construed (or recharacterized) as a request for sua sponte reopening. Because the majority does more than this by reversing the judgment below, I respectfully dissent.

SCOTUS affirms jurisdiction to decide equitable tolling of statutory time limit to file a motion to reopen a removal proceeding

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USCIS Processing Time Chicago Field Office March 31, 2015

Posted on June 15, 2015 by Mike Baker

Field Office Processing Dates for Chicago IL as of March 31, 2015
Form Form Name Processing Timeframe:
I-485

 Application to Register Permanent Residence or to Adjust Status

June 9, 2014
N-400

 Application for Naturalization

October 15, 2014
N-600

 Application for Certification of Citizenship

5 Months

USCIS Processing Time Information-Chicago IL Field Office Posted June 15, 2015.

Posted in USCIS Processing Time Chicago IL Field Office | Leave a comment