Johnson v. Ashcroft

Decision Date05 August 2004
Docket NumberDocket No. 03-2071.
Citation378 F.3d 164
PartiesNorman A. JOHNSON, Petitioner-Appellant, v. John ASHCROFT, U.S. Attorney General; Immigration and Naturalization Service, Respondents-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Appeal from the District Court, Raggi, J.

COPYRIGHT MATERIAL OMITTED

Perry S. Reich, Schapiro & Reich, New York, NY, for Petitioner-Appellant.

Margaret M. Kolbe, Assistant United States Attorney for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Varuni Nelson, Steven J. Kim, Assistant United States Attorneys, on the brief), Brooklyn, NY, for Respondents-Appellees.

Before MINER, CALABRESI, and STRAUB, Circuit Judges.

CALABRESI, Circuit Judge.

This case raises the question of whether the Immigration and Naturalization Service ("the INS" or "the Service")1 may — on the basis of information that was available to the Service at the time of an alien's original proceedings, and subsequent to the entry of a final order of removal — successfully move to remand a case to the Immigration Judge ("IJ") in order to lodge additional grounds for removability. The Petitioner appeals from the judgment of the district court (Raggi, J.) denying his petition for a writ of habeas corpus. We conclude that the Board of Immigration Appeals ("the BIA" or "the Board") acted contrary to its own precedents when, in the absence of any previously unavailable evidence, it granted the Service's motion to remand Petitioner's removal proceedings. We therefore reverse the judgment of the district court and remand the case to that court with instructions to grant the petition.

I. BACKGROUND

Petitioner Norman A. Johnson ("Petitioner" or "Johnson"), a citizen of Jamaica, entered the United States as a lawful permanent resident in 1983. Between November 1994 and December 1998, Petitioner was convicted five times of marijuana related offenses.2 On November 4, 1994 October 23, 1996 and May 7, 1998, Petitioner pleaded guilty to criminal sale of marijuana in the fourth degree, in violation of New York Penal Law § 221.40. On January 5, 1998 and December 1, 1998, Petitioner pleaded guilty to criminal possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10.

A. The Administrative Removal Proceedings

In July of 2000, the INS began removal proceedings against Johnson as an alien convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and as an alien convicted of a crime related to a controlled substance, 8 U.S.C. § 1227(a)(2)(B)(i). In the charging document, and at the hearing before the IJ, the INS relied solely on Petitioner's May, 1998 conviction. On August 15, 2000, the IJ found Petitioner removable on the basis of this conviction. The IJ's decision was affirmed by the BIA on January 9, 2001.

Shortly thereafter, Johnson succeeded in having his May 7, 1998 judgment of conviction vacated pursuant to New York Criminal Procedure Law § 440.10(1)(h). Under BIA precedent, a criminal conviction that has been so vacated does not constitute a conviction for immigration purposes. In re Rodriguez-Ruiz, 22 I. & N. Dec. 1378, 1379 (BIA 2000). Accordingly, on March 30, 2001, the INS moved both to reopen and to remand Petitioner's removal proceedings. In its motion, the INS conceded that the vacatur of Petitioner's May, 1998 judgment of conviction rendered that conviction an inadequate factual predicate for finding Petitioner to be removable. But the Service nonetheless suggested that termination of removal proceedings was not warranted. Instead, it asked that the case be remanded so that it could amend the charging document to include Petitioner's other marijuana convictions. The Petitioner did not file a response to the INS's motion. Subsequently, the BIA granted the motion to reopen as unopposed. The BIA's opinion included the "further order" that the record be "remanded to the Immigration Judge for further proceedings."

On remand, the INS amended the charging document to included Petitioner's four other marijuana convictions. Petitioner, who was pro se, responded by filing a motion to terminate his removal proceedings. In that motion he alleged, inter alia, that the INS was barred by res judicata from bringing new charges against him. Specifically, Petitioner argued that his other marijuana convictions were known to the INS at the time of his initial removal proceedings, and, accordingly, that they constituted an improper basis for renewing removal proceedings before the IJ. Noting that the Service had a "full and fair opportunity" to raise the other marijuana convictions in the context of the original removability proceedings, the Petitioner argued that the INS should not be allowed to relitigate the issue of removability.

In an opinion dated September 17, 2001, the IJ found Petitioner to be removable as charged. The IJ rejected Petitioner's res judicata arguments, concluding that "the parties never had an opportunity to reach the merits of the present issues because the respondent [in his original proceedings] was not charged with [convictions other than the May 7, 1998 conviction]." The IJ further stated that "[t]he respondent's argument that the Service should have alleged all of his convictions in the first proceeding is ... without merit" because "[t]here is nothing in the doctrine of res judicata which requires the Service to do so."

Petitioner filed a timely appeal to the BIA, requesting that the Board terminate his removal proceedings. On February 5, 2002, the BIA issued a decision denying Petitioner's request for termination and affirming the decision of the IJ on the merits.3 In its decision, the Board rejected Petitioner's res judicata and collateral estoppel claims on the grounds that the convictions forming the basis of the new removal order "had never been previously litigated by the parties." The Board also noted that "res judicata will not bar subsequent litigation if new evidence arises after the conclusion of ... previous litigation." The Board did not clarify how this assertion was relevant, given that all of Petitioner's convictions were known or knowable before the end of the earlier litigation.

B. The Habeas Corpus Proceeding

On February 20, 2001, Petitioner filed a habeas petition in the Eastern District of New York pursuant to 28 U.S.C. § 2241. In that petition, he challenged the BIA's January 9, 2001 decision — which at that time was still in effect — inter alia on the grounds that his May 7, 1998 conviction should not be considered an "aggravated felony." Petitioner subsequently amended his petition twice to raise claims relating to the renewal of his administrative proceedings below. Johnson's amended petition alleged, among other things: 1) that the introduction of the new charges by the INS was barred by res judicata, 2) that the BIA erred in granting the Service's motion to reopen in the absence of "evidence which was not available at the time of the previous proceeding [s]", and 3) that Petitioner's convictions (other than the vacated May 7, 1998 conviction) did not constitute aggravated felonies.

Despite the existence of a stay of removal, Petitioner was removed from the United States on February 28, 2002. Subsequently, on October 30, 2002, a status conference was held without Petitioner, at which the district court (Raggi, J.) addressed the merits of Petitioner's claims.4 The district court found Petitioner's res judicata claims to be without merit "for the reasons the government [had argued] in its papers," but sought additional information relating to whether Petitioner's convictions could be considered aggravated felony offenses. The district court did not specifically address whether the BIA had erred in reopening and remanding Petitioner's removal proceeding in the absence of any previously unavailable evidence.

By letter dated November 4, 2002, the INS submitted the additional information requested by the district court. On December 12, 2002, the district court denied the petition for a writ of habeas corpus "for the reasons stated on the record" at the October 30, 2002 status conference. The Petitioner appealed.5

II. DISCUSSION

Petitioner alleges that the Board violated its own regulations in granting the Service's motion to reopen and remand his proceedings. Before we can consider Petitioner's arguments, however, we must address the Service's suggestion that, for various reasons, we lack authority to hear the merits of Petitioner's appeal.

A. Habeas Corpus Jurisdiction

We have previously held that discretionary determinations made by the Board of Immigration Appeals are not reviewable in the context of a § 2241 habeas petition. Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001) (per curiam). The Service contends that the BIA's decision to grant its motion to reopen and remand was discretionary, and hence outside of the scope of § 2241 habeas review.

The INS, however, misapprehends the extent of the BIA's discretion to grant or deny such motions. The BIA is required to follow the law, including INS regulations and BIA precedents that impose mandatory limitations on the granting of procedural motions. While the BIA has substantial discretion to grant or deny motions that fulfill those basic prerequisites, it is without discretion, when it deals with motions made by the parties, to ignore existing regulatory requirements. See, e.g., Ramon-Sepulveda v. INS, 743 F.2d 1307, 1309-10 (9th Cir.1984) (reversing an IJ decision to grant a motion to reopen where regulatory requirements were not met); cf. Acevedo v. INS, 538 F.2d 918, 920 (2d Cir.1976) (per curiam) (noting that the BIA "would have been derelict in its duty" had it granted a reopening in a case where the movant presented no new, and previously unavailable, evidence). The question of whether the BIA has improperly ignored mandatory regulatory requirements is thus a question of law that falls within the...

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