Jahjaga v. Attorney General of U.S., 06-2866.

• Citation: 512 F.3d 80
• Decision Date: 04 January 2008
• Docket Number: No. 06-2866.,No. 06-3466.,06-2866.,06-3466.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: Avni JAHJAGA, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. Goce Gjeroski, Petitioner, v. Attorney General of the United States, Respondent.

512 F.3d 80

Avni JAHJAGA, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Goce Gjeroski, Petitioner, v. Attorney General of the United States, Respondent.

No. 06-2866.

No. 06-3466.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) November 28, 2007.

Opinion Filed: January 4, 2008.

Joshua E. Bardavid, New York, NY, John D. Perez, Perez, Perez & Perez, Newark, NJ, for Petitioner.

[Gvt] Emily A. Radford, Bryan S. Beier, Aviva L. Poczter, Patricia A. Smith, [Gvt] Jesse L. Busen, Richard M. Evans, Joan E. Smiley, Robbin K. Blaya, United States Department of Justice, Office of Immigration Litigation, Thomas H. Dupree, Jr., United States Department of Justice, Civil Rights Division, Washington, DC, for Respondent.

Before: BARRY, FUENTES, and GARTH, Circuit Judges.

OPINION

GARTH, Circuit Judge:

The appeals which we review here involve two fundamental issues: (1) do we have jurisdiction to review the Board of Immigration Appeals' ("BIA") denial of a motion to reissue its decision; and (2) what is the effect of an alien's claim that the BIA's decision, which was purportedly mailed to the last address of record, was never received by the alien. We have yet to decide these issues, which affect the ability of an alien to seek legal redress before being deported from this country. We will grant the petitions and remand both cases to the BIA with instructions consistent with our ruling today.

I.

A.

Petitioner Avni Jahjaga ("Jahjaga") is a citizen of Kosovo who claimed political persecution. After an Immigration Judge ("IJ") denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, he appealed to the BIA. On February 22, 2005, the BIA affirmed the IJ's decision. Jahjaga then filed a motion to reopen his proceeding, which the BIA denied on August 17, 2005. Jahjaga contends that neither he, nor his attorney, received the BIA's August 17 decision until it was mailed to his counsel on November 1, 2005. Jahjaga accordingly argues that his motion to reconsider, which was filed with the BIA on November 30, is timely because it was filed within 30 days of the date of the order's mailing on November 1. See 8 C.F.R. § 1003.2(b)(2). As a result of actions taken by Jahjaga's counsel in writing to the BIA in September and responding to the BIA's October order denying reissuance, we assume without deciding that the motion was timely.

On May 1, 2006, the BIA denied Jahjaga's motion to reconsider. The BIA held that the motion was untimely as Jahjaga failed to file it within thirty days of August 17, 2005. Jahjaga then petitioned this Court for review.

B.

Petitioner Goce Gjeroski ("Gjeroski") is a native of Macedonia and essentially claimed that his coerced military service by Macedonia qualified him for relief. An IJ denied his applications for asylum, withholding of removal, and protection under the Convention Against Torture on September 7, 2004. The BIA affirmed the IJ on December 28, 2005. As in Jahjaga's case, the Government claims the BIA mailed the decision by regular mail to Gjeroski's counsel at the address on record. Gjeroski's counsel claims he never received the decision.

Gjeroski contends he only learned of the BIA's decision after receiving a Notice to Surrender for removal on May 16, 2006. Gjeroski then filed a motion asking the BIA to reissue the December 28, 2005 decision so he could file a timely petition with this Court for review. The BIA denied this motion on June 20, 2006. In its opinion, the BIA essentially provided the same reasons as it expressed in Jahjaga's case for denying Jahjaga's motion, stating: "the decision was mailed to the address provided by counsel on a Notice of Entry of Appearance before the Board" and that "there is no error attributable to the Board in the service of its decision to counsel."

C.

Because both appeals require us to address the same two questions of our jurisdiction and the alien's failure to receive the BIA's decision ordering removal, on November 16, 2007, we consolidated Jahjaga's and Gjeroski's petitions for the purpose of disposition.

II.

We first address our jurisdiction to review the BIA's denial of petitioners' motions to reissue. The Government argued initially that the denial of a motion to reissue a decision of the BIA is not a final order over which we have jurisdiction. However, Congress granted federal courts the ability to review a "final order of removal," subject to certain exceptions. See 8 U.S.C. § 1252(a)(1), (2). We treat a motion to reissue as a motion to reopen. See Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 n. 2 (1st Cir.2006); Singh v. Gonzales, 469 F.3d 863, 865 n. 4 (9th Cir.2006). The denial of a motion to reopen is itself a final order of removal. See Cruz v. Att'y Gen., 452 F.3d 240, 246 (3d Cir.2006). Therefore, we have jurisdiction to review a denial of a motion to reissue a BIA opinion as long as none of the exceptions apply — as none does here.

Moreover, the Government also argued that the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii) deprived us of the ability to review the BIA's decisions because they were discretionary, and thus barred judicial review. This provision provides that:

[N]o court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).

The operative phrase here is "specified under this subchapter." We previously held that the exceptions are enumerated in the relevant statutes, 8 U.S.C. §§ 1151-1378. Khan v. Att'y Gen., 448 F.3d 226, 230 (3d Cir.2006); Urena-Tavarez v. Ashcroft, 367 F.3d 154, 158 (3d Cir.2004). Motions to reissue are not listed under this subchapter.

We have held in Khan that, in the absence of statutory authority prescribing the BIA's discretionary power, there is a strong presumption in favor of judicial review of the administrative action. Khan, 448 F.3d at 232 (citations omitted). Khan held that where no statute authorized a denial of a continuance, no jurisdictional bar was effective. See id. Accordingly, we concluded in Khan that a statute had to provide discretionary authority to the BIA before our jurisdiction was barred. Id. at 232-33. This was the same conclusion reached by the Second, Fifth, Ninth, and Eleventh Circuit Courts of Appeals. Because no statute provides that motions to reissue are solely within the BIA's discretion, we possess jurisdiction to review their denial for abuse of discretion. See id. at 233.

Under the abuse of discretion standard of review, we will not disturb the BIA's decision unless it was "arbitrary, irrational, or contrary to law." Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004) (citations and quotations omitted). The Government in its supplemental memorandum¹ agrees that the BIA's denial of reissuance may be reviewed by us for abuse of discretion, citing Sevoian v. Ashcroft, 290 F.3d 166, 174-77 (3d Cir.2002). We are satisfied that the BIA's denials of the motions to reissue its August 17, 2005 decision (Jahjaga) and its December 28, 2005 decision (Gjeroski) were not proper exercises of its discretion, as they were contrary to law.

III.

Our concern with the issue of whether an alien subject to deportation has received the reasons for the BIA's action in the form of an opinion, stems from the recognition that a deportation order may tear an alien from his home and family and may deprive him of "all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922) (Brandeis, J.). If the reasons for the BIA's action in ordering removal are not known to the alien because the BIA failed to properly serve its opinion, the consequences to the alien may be as drastic as Justice Brandeis reasoned. Hence we focus on the answer to the fundamental question: what should we do if the alien claims he did not receive the BIA's opinion informing him of the reason he is being removed? To answer this question, we refer to the operative regulations and the cases interpreting them.

A.

Federal regulations require the BIA to serve its final decision on an alien, 8 C.F.R. § 1003.1(f), or the alien's attorney of record, 8 C.F.R. § 1292.5(a). The regulations define "service" as either "physically presenting or mailing a document to the appropriate party or parties." 8 C.F.R. § 1003.13. Although we have considered the issue in the context of a failure to receive a notice of hearing, see Santana Gonzalez v. Attorney General, 506 F.3d 274 (3d Cir.2007), we have never addressed the effect of an alien's claim that the BIA's decision of removal was not received by him. Two Circuit Courts of Appeals, taking slightly different approaches, have addressed the issues we write on today.

In Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007), the petitioner claimed he never received a BIA decision ordering his removal. After learning about the decision, he filed a motion to reissue the decision to allow him to file a timely Petition for Review. Singh attached an affidavit to his motion that he never received the decision. The BIA denied Singh's motion, relying on essentially the same reasoning as in the instant consolidated appeals.² Singh's petition followed.

The Ninth Circuit Court of Appeals looked to the BIA's reasoning for denying Singh's motion for reissuance and held that it "provided no explanation of how it reached [its] conclusion" that it properly mailed the decision, nor did it address Singh's affidavit claiming non-receipt. Id. at 1172. The Ninth Circuit also noted the presence of a transmittal cover letter in the administrative record. On this point, the Ninth Circuit stated:

Although we have previously held that a properly addressed cover letter...