Mickeviciute v. I.N.S.

• Decision Date: 28 April 2003
• Docket Number: No. 02-9516.,02-9516.
• Parties: Daive MICKEVICIUTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

327 F.3d 1159

Daive MICKEVICIUTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-9516.

United States Court of Appeals, Tenth Circuit.

April 28, 2003.

Jim Salvator, Lafayette, CO, for Petitioner.

Emily Anne Radford, Assistant Director, and Joshua E. Braunstein, Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for Respondent.

Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.^*

BALDOCK, Circuit Judge.

Petitioner Daive Mickeviciute is a native and citizen of Lithuania who entered the United States on a visitor's visa in 1991. The Immigration and Naturalization Service (INS) initiated deportation proceedings against her after she overstayed her visa. Petitioner applied for asylum. The immigration judge denied Petitioner's asylum application and determined she was deportable. The Board of Immigration Appeals (BIA) upheld the immigration judge's decision. We affirmed. See Mickeviciute v. Immigration and Naturalization Serv., 18 Fed. Appx. 772 (10th Cir.2001)(unpublished).

After the BIA's decision, but before this Court affirmed, Petitioner filed a motion with the BIA to reopen her deportation proceedings. Petitioner argued she was entitled to a reopening under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), because her former counsel rendered ineffective assistance in handling her diversity visa application. In 1994, Petitioner applied for a visa under the Diversity Visa Lottery Program. Congress instituted this program to distribute visas to persons from countries that historically have low rates of immigration to the United States. See 8 U.S.C. § 1153(c)(1).

The statute directs the Attorney General to calculate immigration rates for the past five years and identify low-admission states and regions. 8 U.S.C. §§ 1151(a), 1153(c). The diversity visas are then allotted, based on formula, to persons from the low-admission states or regions. 8 U.S.C. § 1153(c). The program operates on a fiscal year, whereby only a certain number of visas are available to the immigrants from the low-admission states or regions. Id. ... Applications far exceed[] allotments.... The eligible immigrants must submit an application for the lottery during a specified time period, usually thirty days. See, e.g., 59 Fed.Reg. 61918. A computer randomly selects the set number of applicants from the pool, hence the term "lottery". 22 C.F.R. § 42.33(c). The lottery winners are notified in the summer and are instructed on how to apply for an immigrant visa. See, e.g., 61 Fed.Reg. 58730, 58731. The lottery visa offer is only good until the last day of the fiscal year in which the application was submitted. 22 C.F.R. §§ 42.33(e), (g). Thus, a 1995 applicant, notified in the summer of 1995, had from October 1995 until September 30, 1996 to complete the application process. 59 Fed.Reg. 61918, 61919-20. Persons selected for [diversity] visas, who reside in the United States, may petition for an adjustment of status under 8 U.S.C. § 1255(a). The caveat is that the applicant must complete the process, application and adjudication, before time expires because a visa can only be issued during the relevant fiscal year. 8 U.S.C. § 1151(a)(3); 8 U.S.C. § 1153(c)(1), 8 U.S.C. § 1154(a)(1)(I)(ii).

Iddir v. Immigration and Naturalization Serv., 301 F.3d 492, 494 (7th Cir.2002).

Petitioner alleges that after she was randomly selected in the visa lottery, her attorney failed to follow up on her diversity visa interview request, thereby depriving her of the opportunity to receive a diversity visa. She alleges her attorney rendered ineffective assistance in her deportation proceedings because he failed to inform the BIA through a motion to remand that she was selected in the diversity visa lottery. Petitioner requested the BIA to reopen her deportation proceedings and direct the immigration judge to place her case in administrative closure until she has had a reasonable opportunity to petition a federal court for relief.¹ Petitioner wants a federal court to order the National Visa Center to consider her diversity visa interview request as timely filed in view of her previous attorney's ineffective assistance.

The BIA found Petitioner met the preliminary requirements for supporting her motion with an ineffective assistance claim under Matter of Lozada.² The BIA nevertheless denied Petitioner's motion to reopen after determining it did not have the power to grant Petitioner the ultimate form of relief she sought. Petitioner seeks review of the BIA's decision denying her motion to reopen. Because the INS commenced deportation proceedings against Petitioner before the Illegal Immigration Reform and Immigrant Responsibility Act's (IIRIRA) April 1, 1997 effective date, and the order of deportation was entered after October 31, 1996, we have jurisdiction to review the BIA's decision under the pre-IIRIRA version of 8 U.S.C. § 1105a as amended by the transitional rules. See Itaeva v. Immigration and Naturalization Serv., 314 F.3d 1238, 1240 (10th Cir.2003); Osei v. Immigration and Naturalization Serv., 305 F.3d 1205, 1207 n. 1 (10th Cir. 2002); see also Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290-91 (10th Cir.2001) (holding 8 U.S.C. § 1252(g) does not preclude appellate review of motions to reopen).

We review the BIA's decision on a motion to reopen for an abuse of discretion. Immigration and Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Dulane v. Immigration and Naturalization Serv., 46 F.3d 988, 994 (10th Cir.1995). The BIA abuses its discretion when its decision "`provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.'" Osei, 305 F.3d at 1208 (quoting Zhao v. United States Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001)). The BIA may deny a motion to reopen on at least three independent grounds. Abudu, 485 U.S. at 104-05, 108 S.Ct. 904. "First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought." Id. at 104, 108 S.Ct. 904. "Second, the BIA may hold that the movant has not introduced previously unavailable, material evidence, or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially." Id. at 104-05, 108 S.Ct. 904 (internal citations omitted). Third, in cases in which the ultimate grant of relief is discretionary, the BIA may determine the movant would not be entitled to the discretionary grant of relief. Id. at 105, 108 S.Ct. 904.

In denying Petitioner's motion to reopen, the BIA's entire analysis consisted of the following:

[Petitioner] is not seeking a form of relief from deportation that is within the power of this Board to grant. In fact, [Petitioner] has acknowledged that she will have to pursue the relief she seeks in federal court (Brief at 3). [Petitioner] wants the Board to reopen deportation proceedings and hold them in abeyance until she has had a fair and reasonable opportunity to petition the federal court for the relief she seeks. She wants the federal court to order the National Visa Center to consider her diversity visa interview request as timely filed in view of her previous counsel's ineffective assistance with the diversity visa application process.

The Board has exercised the authority it has in this case by issuing a decision on [Petitioner's] appeal from the decision of the Immigration Judge. See generally 8 C.F.R. § 3.1. It would not be appropriate for us to reopen the proceedings for the sole purpose of permitting [Petitioner] to remain in the United States while she seeks relief in the federal courts. See 8 C.F.R. § 3.2(c).

We are unable to determine from the BIA's language and mere citation to 8 C.F.R. § 3.2(c) on which of the Abudu grounds the BIA relied to deny Petitioner's motion to reopen. We cannot perform a meaningful review where the Board does not sufficiently articulate its reasoning. See Dulane, 46 F.3d at 995 (noting that releasing the BIA of its obligation to articulate a reasoned basis for its decisions would eliminate any guaranty of rationality and foreclose meaningful review).³ We are not at liberty to search the law and the record for reasoning to support the BIA's decision because "`a court may not uphold an agency action on grounds not relied on by the agency.'" St. Anthony Hosp. v. United States Dep't of Health and Human Servs., 309 F.3d 680, 699 (10th Cir.2002) (quoting Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 91 (10th Cir. 1993)).

Logical reasons exist to deny a motion to reopen where the BIA cannot grant Petitioner the ultimate relief she seeks. But recently we cautioned the BIA that departures from the usual Matter of Lozada requirements on motions to reopen must be supported by reasoned explanation. See Osei, 305 F.3d at 1208-10 (holding BIA abused its discretion in denying a motion to reopen on grounds of ineffective assistance where BIA supported denial by mere citation to 8 C.F.R. § 3.2(c), BIA had not previously based denial of such a motion on § 3.2(c), and BIA provided no explanation for changing course). We therefore remand to the BIA with instructions to explain whether its lack of authority to grant the ultimate relief Petitioner requests constitutes (1) a failure to establish prima facie eligibility for the underlying substantive relief Petitioner seeks; (2) a failure to introduce previously unavailable, material evidence; or (3) a failure to establish entitlement to discretionary relief. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904. Alternatively, the BIA can decide, with reasoned explanation, that petitioners seeking a motion to reopen under Matter of Lozada must demonstrate as a new requirement that the BIA itself has authority to grant the ultimate substantive relief from deportation the petitioner seeks. See Osei, 305...