Berroteran-Melendez v. I.N.S.

• Decision Date: 12 September 1991
• Docket Number: No. 90-70327,BERROTERAN-MELENDEZ,90-70327
• Citation: 955 F.2d 1251
• Parties: Julio Cesar, et al., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1251

955 F.2d 1251

Julio Cesar BERROTERAN-MELENDEZ, et al., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70327.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 12, 1991. ^*

Decided Feb. 3, 1992.

Francisco J. Barba, San Francisco, Cal., for petitioner.

Donald A. Couvillon, Office of Immigration Litigation, Dept. of Justice, Washington, D.C., for respondent.

Appeal from the Bureau of Immigration Appeals.

Before CANBY and KOZINSKI, Circuit Judges, and CARROLL ^**, District Judge.

CARROLL, District Judge:

OVERVIEW

Julio Cesar Berroteran-Melendez, his wife Ruth, and their two children (collectively "petitioners") petition for review of the Board of Immigration Appeals' ("BIA") order affirming the Immigration Judge's ("IJ") decision denying their request for asylum and withholding of deportation. ¹

FACTUAL AND PROCEDURAL BACKGROUND

Julio Cesar Berroteran-Melendez, his wife, and their two minor children are citizens of Nicaragua. On January 3, 1988, the Immigration and Naturalization Service ("INS") issued each of them an order to show cause ("OSC") why they should not be deported for entering the United States without inspection.

At a joint deportation hearing, the petitioners, represented by counsel, admitted the allegations in the OSC, conceded deportability, and requested political asylum. The IJ continued the hearing in order to allow the petitioners an opportunity to file their applications for political asylum pursuant to Section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(a), and for withholding of deportation pursuant to Section 243(h) of the INA, 8 U.S.C. § 1253(h).

The petitioners appeared with counsel at the October 7, 1988 continuation of the hearing. The IJ rendered an oral decision denying the petitioners' request for asylum and withholding of deportation, but granting their request for voluntary departure. On October 12, 1988, the petitioners filed a timely notice of appeal to the BIA. On June 8, 1990, the BIA affirmed the IJ's decision and dismissed the appeal.

On July 2, 1990, the petitioners filed a timely petition for review with this court. Subsequently, on September 4, 1990, the On December 21, 1990, a deputy clerk issued an order to the petitioners to voluntarily dismiss their appeal for lack of jurisdiction, or alternatively to show cause why their appeal should not be dismissed. The OSC was referred to this panel.

                petitioners filed a motion to reopen deportation proceedings with the BIA and a motion with this court to suspend judicial proceedings pending the BIA's ruling on the motion to reopen.   On September 7, 1990, a deputy clerk issued an order denying the petitioners' motion to suspend proceedings.   On September 18, 1990, the petitioners filed a motion for reconsideration of the order denying the motion to suspend proceedings, which was denied without prejudice to a renewed motion at the completion of briefing
                

DISCUSSION

I. Jurisdiction

The petitioners contend that this Court lacks jurisdiction over this appeal as the BIA has not yet ruled on the pending motion to reopen. The BIA, however, contends that this Court has jurisdiction under 8 U.S.C. § 1105a(a) because the BIA's order of dismissal was a final order of deportation over which this Court has jurisdiction.

If a petitioner files a motion to reopen before seeking judicial review with this Court an "otherwise appealable final order becomes no longer appealable ... until the motion is denied or the proceedings have been effectively terminated." Fayazi-Azad v. INS, 792 F.2d 873, 874 (9th Cir.1986). See Chu v. INS, 875 F.2d 777, 779-81 (9th Cir.1989). If the motion to reopen is subsequently denied by the BIA, both the denial of the motion to reopen and the original deportation order are reviewable by this Court upon timely petition. See Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (9th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2659, 81 L.Ed.2d 366 (1984).

In Chu, this Court based its holding that it was without jurisdiction on the rationale that it was Congress' intent to avoid piecemeal litigation by having a single judicial review of all questions relating to an alien's deportation. See Chu, 875 F.2d at 779, citing Chung, 720 F.2d at 1474. Such a policy avoids duplication and waste of judicial and agency resources, and promotes the judicial policy of allowing administrative agencies the opportunity to correct their own mistakes. See generally, Chung, 720 F.2d at 1474.

However, the petitioners here filed their motion to reopen after they filed their petition for review. While this Court has never specifically considered whether we have jurisdiction when a motion to reopen is filed after a petition for review is filed, this Court, without explanation, has exercised jurisdiction in such circumstances. Wall v. INS, 722 F.2d 1442, 1443 (9th Cir.1984). ²

Other circuits have similarly exercised jurisdiction despite a pending motion to reopen. We agree and thus hold that we have jurisdiction pursuant to 8 U.S.C. § 1105. We turn now to the question whether a suspension of appellate proceedings is appropriate pending the BIA's decision.

In Lozada v. INS, 857 F.2d 10, 12 (1st Cir.1988), the First Circuit held the case in abeyance pending the BIA's ruling on the motion to reopen, and decided the case on the merits when the BIA denied the motion. In Wall, 722 F.2d at 1443, this Court suspended appellate proceedings pending the BIA's disposition of the motion to reopen. The decision to stay was an exercise of judicial discretion; we neither stated nor implied that the court was required to suspend proceedings pending resolution of the motion to reopen.

In Figeroa v. INS, 886 F.2d 76, 77 n. 1 (4th Cir.1989), on the other hand, the Fourth Circuit decided the merits of an alien's ineffective assistance of counsel claim despite a pending motion to reopen filed after his petition for judicial review.

The Court did not discuss its exercise of jurisdiction.

In Alleyne v. INS, 879 F.2d 1177, 1181-82 n. 7 & 8 (3rd Cir.1989), the Third Circuit exercised jurisdiction but explicitly refused to hold the case in abeyance. The holding depended in large part on the previous Third Circuit decision in Nocon v. INS, 789 F.2d 1028 (3rd Cir.1986), in which the Court had held, relying on the expressed Congressional policy of preventing delay once immigration status has been determined, that the filing of a motion to reconsider did not toll the limitations period for filing a petition for review in the Court of Appeals. On the tolling issue, Ninth Circuit authority is to the contrary, and holds that the filing of a motion to reopen or reconsider tolls the limitations period for filing a petition for review. Chung, 720 F.2d at 1473; Fayazi, 792 F.2d at 874. Arguably, under Ninth Circuit law, there is no substantive difference between the filing of a motion to reopen before the petition for review, in which case the time for filing the petition runs from the date of the decision on the motion to reopen, and where a motion to reopen is filed after the petition for review and the appellate proceedings are suspended. The appellate process would not be further delayed.

However, the Alleyne Court also noted that the practice of suspending appellate proceedings would effectively create an automatic stay of deportation pending the outcome of a motion to reopen. This result would be contrary to administrative regulations that "[t]he filing of a motion to reopen or a motion to reconsider shall not serve to stay the execution of any decision made in the case." Alleyne, 879 F.2d at 1181-82 n. 7., citing, 8 C.F.R. § 3.8(a) (1988).

While suspending proceedings would promote judicial efficiency, see Chu, 875 F.2d at 779, the potential for abuse of the process to circumvent the BIA's discretionary power to grant or deny a stay of deportation pending a motion to reopen outweighs concerns with efficiency. After balancing these concerns in the factual context of this case, we elect not to stay judicial proceedings.

II. Standard of Review

Relief pursuant to Section 208(a) of the INA is within the discretion of the Attorney General, INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1208-09, 94 L.Ed.2d 434 (1987), and we review the BIA's decision not to grant relief under an abuse of discretion standard. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 9 (9th Cir.1984). We review the BIA's factual determination that an alien has failed to prove a well-founded fear of persecution for substantial evidence. Sanchez-Trujillo v. INS, 801 F.2d 1571, 1578 (9th Cir.1986). We also review the BIA's decision to grant or deny the withholding of deportation for substantial evidence. Echeverria-Hernandez v. INS, 923 F.2d 688, 690 (9th Cir.1991).

The substantial evidence standard does not permit the Court to reverse the BIA solely because the Court disagrees with the BIA's evaluation of the facts, but requires that "the BIA's conclusion, based on the evidence presented, be substantially reasonable." Del Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990), citing, Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986).

III. Merits

To be eligible for asylum, applicants must establish that they are refugees based on either past persecution ³ or a "well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." ⁴ Section 101(a)(42) of the INA; 8 U.S.C. § 1101(a)(42); See also, Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). The burden is on the alien to establish eligibility for asylum. Estrada- Berroteran-Melendez's application is largely based on his work with his uncle, Leonidas Guadamuz, who was Chief of the Driver's License Section in the Traffic Police in Managua, Nicaragua until his retirement in 1977. Berroteran-Melendez claimed that Guadamuz had been granted asylum in the United States.

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