Ibragimov v. Gonzales

• Citation: 476 F.3d 125
• Decision Date: 25 January 2007
• Docket Number: Docket No. 05-4771-ag.
• Parties: David IBRAGIMOV, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

476 F.3d 125

David IBRAGIMOV, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Docket No. 05-4771-ag.

United States Court of Appeals, Second Circuit.

Argued: October 6, 2006.

Decided: January 25, 2007.

Michael P. Diraimondo, Diraimondo & Masi, LLP, Melville, NY, for Petitioner.

Debra Prillaman, Assistant United States Attorney (Chuck Rosenberg, United States Attorney, on the brief), United States Attorney's Office for the Eastern District of Virginia, Richmond, VA, for Respondent.

Before FEINBERG, CABRANES, and SACK, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

We consider here the claims of a petitioner who all but concedes that he has no legal right to remain in the United States, but who argues that his removal proceedings were invalid because the charges brought against him did not reflect his proper status, which he claims was merely that of an illegal "visa overstay."¹ In particular, we consider whether petitioner, who remained in the United States after the expiration of his B-2 visa,² and subsequently left and returned to the country pursuant to the government's grant of "advance parole"³ while his adjustment-of-status application⁴ was pending, was improperly charged with removal as an "arriving alien"⁵ and an "applicant for admission"⁶ once his adjustment-of-status application was denied. Petitioner argues that because he traveled abroad with the government's express authorization, he should have retained his prior status as a visa overstay and been subject to a charge of deportability (rather than inadmissability).⁷ He therefore contends that the IJ erred in denying his motion to terminate his removal proceedings and in failing to afford him the enhanced protections that apply to visa overstays, as opposed to arriving aliens.

We hold that the government did not err in treating petitioner as an arriving alien and an applicant for admission, or in denying his motion to terminate his removal proceedings. We further hold, pursuant to Kambolli v. Gonzales, 449 F.3d 454 (2d Cir.2006), that we lack jurisdiction to consider petitioner's additional claim that the Board of Immigration Appeals ("BIA") erred by having his appeal decided by a single-member panel rather than referring it to a three-member panel for decision. Finally, assuming without deciding that we have jurisdiction to review the propriety of the one-judge panel's issuance of a summary affirmance instead of a written opinion, we conclude that it was not error to do so here under the governing BIA regulations.

I. Background

Petitioner David Ibragimov, a native of Uzbekiztan and citizen of Israel, entered the United States on a valid six-month B-2 visa on September 20, 1992. Petitioner over-stayed his visa—i.e., he remained in the United States after the expiration of the visa that permitted him to enter the United States in the first place; that visa expired on March 19, 1993. On November 8, 1995, while still residing in the United States, he married a United States citizen. Petitioner's wife subsequently filed a Petition for Alien Relative ("Form I-130") on his behalf. In conjunction with the Petition for Alien Relative, petitioner filed an Application for Adjustment of Status ("Form I-485").

While these applications were pending before the Immigration and Naturalization Service ("INS")⁸, petitioner applied for "advance parole," i.e., permission to leave and return to the United States with the government's prior authorization pending resolution of his immigration status. The INS granted advance parole on July 29, 1996 by issuing a "Form I-512." The Form I-512 contained a warning which stated: "WARNING: pursuant to 8 C.F.R. § 245.2(a)(4) if your application for adjustment of status is denied, you will be subject to exclusion proceedings."⁹ Pursuant to this advance parole authorization, and while his adjustment of status application was pending, petitioner left the United States and was "paroled back" into the country several times.

Petitioner's most recent return to the United States pursuant to the government's grant of advance parole occurred on or about July 24, 1998. Thereafter, on October 19, 1999, the INS denied petitioner's visa petition and his Application for Adjustment of Status. On July 23, 2001, the INS revoked petitioner's parole on the ground that its purpose "ha[d] been accomplished, and there [was] no emergent, humanitarian, or public interest reasons which warrant[ed]" his continued presence in the United States.

On October 1, 2001, the INS issued a Notice to Appear ("NTA") for removal proceedings before an immigration judge. The NTA charged that petitioner was inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I).¹⁰ In particular, the NTA alleged that petitioner was a non-citizen who (1) "applied for admission to enter the United States . . . on or about ... July 24, 1998 [the date he last returned to the United States]"; (2) applied for admission as an intending immigrant; and (3) was "not in possession of a valid, unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act."

Removal proceedings were held before Immigration Judge ("IJ") Patricia J. Rohan between February 2002 and February 2004. On or about May 12, 2003, petitioner filed a motion to terminate his removal proceedings. In his brief in support of his motion to terminate, petitioner argued, inter alia, that he was not an arriving alien (i.e., an applicant for admission) as alleged in the NTA because he had left and been "paroled back" into the country with the government's advance authorization. The INS opposed the motion, arguing that under applicable INS regulations petitioner was an "arriving alien."

On February 26, 2004, the IJ denied petitioner's motion to terminate the removal proceedings. The IJ stated that petitioner had not "established as a matter of law that the definition of an arriving alien does not apply to him." The IJ concluded that "[the definition of an arriving alien] clearly does apply to [the petitioner] who most recently returned to the United States and was paroled into the United States for the purpose of completing his application for adjustment of his status." Pursuant to this determination, the IJ ordered petitioner removed from the United States on the grounds that he had not shown he was eligible for admission to the country.

Petitioner timely appealed the IJ's decision to the Board of Immigration Appeals. On August 3, 2005, the BIA affirmed without opinion the IJ's removal order. See In re David Ibragimov, No A 74 836 729 (BIA Aug. 3, 2005), aff'g No A 74 836 729 (Immig. Ct. N.Y. City Feb. 26, 2004). Petitioner timely seeks review of the BIA's decision.

On appeal, petitioner raises substantially the same argument that he raised in support of his motion to terminate before the IJ—namely, that he was not an "arriving alien" subject to a determination as to admissibility, but was, rather, a "visa overstay" subject to a determination as to deportability. He therefore urges this Court to hold that the IJ's denial of his motion to terminate was error.

Petitioner also argues on appeal that the BIA violated his constitutional rights to due process of law and to equal protection of the laws when it affirmed the IJ's decision by the action of one member of the BIA and without the issuance of a published opinion.

II. Governing Law

A. Burden of Proof in Removal Proceedings

Following Congress's passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, ("IIRIRA"), there is a single category of immigration proceedings for adjudicating whether an alien is legally present in the United States—namely, "removal proceedings."¹¹ The burden of proof in removal proceedings differs, however, depending on an alien's immigration status at the time his proceedings are commenced. In particular, an individual who is an "applicant for admission" to the United States at the time of his removal proceeding is deemed to be legally at the border and bears the burden of establishing that he "is clearly and beyond doubt entitled to be admitted and is not inadmissible . . . or . . . by clear and convincing evidence, that [he] is lawfully present in the United States pursuant to a prior admission." 8 U.S.C. § 1229a(c)(2).

By contrast, in a removal proceeding commenced after an alien has been formally "admitted" to the country, "the Service [i.e., the government] has the burden of establishing by clear, convincing evidence that . . . the alien is deportable," 8 U.S.C. § 1229a(c)(3)(A).

Accordingly, whether an alien's presence in the United States is pursuant to a prior "admission" is the decisive factor in determining whether the alien or the government bears the burden of proof in removal proceedings.

B. Charges in Removal Proceedings

An alien's prior "admission" vel non is also dispositive in determining which particular "charge" of removability is appropriate to his removal proceedings. An alien who is "in and admitted to the United States," is considered potentially deportable and is therefore subject to a charge of deportability. 8 U.S.C. § 1227(a); id. § 1229a(a). By contrast, an alien who is not in the United States pursuant to a prior admission is considered potentially inadmissible and is therefore subject to a charge of "inadmissibility," See 8 U.S.C. 1229a(e)(2) (explaining distinction between aliens removable on the basis of inadmissibility and aliens removable on a basis of deportability).

C. Admission, Entry, and Arriving Aliens

The INA defines the "admission" of an alien as follows: "The terms `admission' and `admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA § 101(a)(13)(A), 8...