Alvarez v. Ashcroft

Decision Date21 September 2001
Docket NumberGALLO-ALVARE,Nos. 99-71038,RESPONDENTS-APPELLANTS-CROSS-APPELLEES,PETITIONER-APPELLEE,PETITIONER-APPELLEE-CROSS-APPELLANT,00-35238 and 00-35289,s. 99-71038
Citation266 F.3d 1123
Parties(9th Cir. 2001) ROSARIO, v. JOHN ASHCROFT, <A HREF="#fr1-*" name="fn1-*">* ATTORNEY GENERAL, RESPONDENT. ROSARIO-CROSS-APPELLANT, v. ROBERT C. EDDY; DORIS MEISSNER; JOHN ASHCROFT, <A HREF="#fr1-**" name="fn1-**">**
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted] Alice E. Loughram, Papu Sandhu, Office of Immigration Litigation, United States Department of Justice, for the respondents-appellants-cross-appellees.

Margaret D. Stock, Jeffrey Scott Moeller, Anchorage, Alaska, for the petitioner-appellee-cross-appellant.

Petition to Review a Decision of the Board of Immigration Appeals INS No. A29-637-530

Before: Harry Pregerson, Sidney R. Thomas and Ronald M. Gould, Circuit Judges.

Thomas, Circuit Judge.

This consolidated case presents the question of whether 8 U.S.C. §§ 1231(a)(5) permits the Immigration and Naturalization Service ("INS"), to reinstate an order of deportation summarily pertaining to an alien who was granted voluntary departure in lieu of deportation. We hold that the statute allows the INS to do so, but that the record in this instance is insufficient to determine whether §§ 1231 applies to the petitioner. Thus, we remand the appeal and transfer the petition for review to the district court for evidentiary resolution of the relevant issues. Given this result, we do not reach the question as to the constitutionality of the reinstatement provision.

I.

Rosario Gallo-Alvarez ("Gallo") was born in Jalisco, Mexico in 1951. He entered the United States illegally in 1972, and has been in this country more or less continuously since that time, working at a series of restaurants. In 1974, the INS apprehended Gallo after raiding the restaurant where he was working, and sent him back to Mexico. He returned approximately ten days later. Gallo was arrested in 1979 as he returned from a brief trip to Mexico and ultimately pleaded guilty to falsely claiming to be a United States citizen. He was sentenced to one year in prison, but his sentence was modified to time served and three years' probation. Following his release, Gallo left the United States, but returned two months later. Beginning in 1989, Gallo worked at his brother's restaurant in Anchorage, Alaska.

On October 27, 1992, Gallo was arrested in Anchorage while attempting to renew his driver's license. The INS served him with an Order to Show Cause, and an immigration judge ("IJ") denied Gallo suspension of deportation, but granted him sixty days in which to voluntarily depart.1 In his oral decision, the IJ noted Gallo's intention to marry his girlfriend of four years, Maria Acevedo, a recently naturalized United States citizen, as soon as her divorce became final. The IJ declared himself unable to offer Gallo suspension of deportation in part because Gallo had alternate relief available through his planned marriage to Acevedo.

Gallo timely appealed the IJ's adverse decision to the Board of Immigration Appeals ("BIA"). Shortly after filing the appeal, Gallo and Acevedo married, and she filed a visa petition on his behalf. However, Gallo neglected to make a motion to reopen his deportation proceedings in order to raise the issue of his marriage to a United States citizen.

In January, 1997, while his appeal before the BIA was still pending, Gallo left for Mexico to visit his dying father. Although Gallo informed his lawyer of his intention to depart, his lawyer did not obtain approval from the INS. Furthermore, the attorney did not inform Gallo that his departure for Mexico would forfeit his appeal to the BIA. Although Gallo's father died before he could reach him, Gallo stayed in Mexico for a few months. It is unclear precisely when Gallo returned to the United States, but according to Acevedo, Gallo was back in Anchorage on or about June 12, 1997.

At a meeting with Alaska's INS District Director Robert Eddy shortly after returning from Mexico, Gallo told Eddy that he had reentered the United States with a border-crossing card that he had thrown away. Gallo claims that he tried to cross using a border-crossing card, but was rebuffed by border officials, and then crossed the border without inspection that same afternoon. Eddy informed Gallo that Gallo would have to pay the additional $1,000 fee in order to process his visa petition since he could not prove that he had legally reentered the country.

Eddy's version of events is different: he claims that he believed that Gallo's last entry into the United States had been legal. Eddy also told them that Gallo's attorney had"misfiled some of the paperwork." According to Acevedo, Eddy told them that there would be no further deportation proceedings, but that Gallo needed to provide the INS with proof that he had left the country, by sending a copy of the airline ticket. On September 11, 1997, at the INS's suggestion, Gallo filed another petition for adjustment of status because his first application was deemed abandoned when he left the country. In this petition, Gallo stated his arrival date as June 12, 1997.

On July 11, 1998, Gallo's attorney moved to withdraw his previous appeal to the BIA. In that motion, Gallo requested that the BIA enter an order granting him voluntary departure, due to the medical emergency that provoked Gallo's trip to Mexico. Gallo did not make a motion to reopen the proceedings. On September 21, 1998, the BIA acknowledged that the appeal had been withdrawn, and ordered that the record be returned to the immigration court without further action. In its order, the BIA noted that it was without jurisdiction to grant Gallo voluntary departure in view of the withdrawal.

On August 10, 1999, Gallo went to the INS office to renew his work authorization, on the suggestion of Eddy. There the INS served him with a Notice of Intent to Reinstate Prior Order. Gallo signed the order, and checked a box indicating that he did not wish to make a statement. Gallo was arrested on the spot and placed in custody.

II.

On August 23, 1999, Gallo then filed a petition for review in this court and a petition for a writ of habeas corpus in the district court for the District of Alaska. On January 3, 2000, the district court ruled on Gallo's petition for a writ of habeas corpus. In his petition for a writ, Gallo made several claims, including (1) §§ 1231(a)(5) did not apply to him; (2) ineffective assistance of counsel; and (3) estoppel by virtue of INS misconduct.

The district court found that it had jurisdiction over Gallo's ineffective assistance of counsel claim, as well as his claim of INS misconduct. However, it held that the INA's reinstatement provision, codified at 8 U.S.C. §§ 1231, did not apply to Gallo, rendering his due process claims moot. The district court found that it did not have jurisdiction over Gallo's claim for adjustment of status, and therefore dismissed the petition.

Just prior to appeal to this court, the INS released Gallo from custody. In addition, on August 16, 1999, the INS denied Gallo's application for adjustment of status.

III.

The threshold issue before us is whether this court has jurisdiction over either Gallo's direct appeal or his habeas appeal, or both. We find that as a result of the jurisdictionsaving transfer statute, 28 U.S.C. §§ 1631, we have jurisdiction over the claims raised by Gallo in this court as well as those raised in the district court.

While Gallo's appeals were pending in this court, we held that §§ 242 of the Immigration and Nationality Act ("INA") authorizes direct review by the courts of appeals of reinstatement orders under 8 U.S.C. §§ 1231(a)(5). Castro-Cortez v. INS, 239 F.3d 1037, 1043-44 (9th Cir. 2001). Therefore, we have jurisdiction over Gallo's petition for review. In CastroCortez we noted the necessary implication of this holding, namely that, absent exhaustion, "[t]he district court was not authorized to hear these petitions under §§ 2241, [its habeas jurisdiction], because direct review was available." Id. at 1047.

Nevertheless, Castro-Cortez noted that in cases where it is unclear which court possesses jurisdiction, the jurisdictionsaving transfer statute, 28 U.S.C. §§ 1631, may be invoked in order to preserve jurisdiction over claims incorrectly brought in a lower court. Gallo meets the conditions of the jurisdiction-saving transfer statute. 28 U.S.C.§§ 1631.2 "The transfer statute authorizes us to transfer these cases to ourselves if: (1) we would have been able to exercise jurisdiction on the date that they were filed in the district court; (2) the district court lacked jurisdiction over the cases; and (3) the transfer is in the interest of justice." Castro-Cortez, 239 F.3d at 1046 (citation omitted).

Gallo filed his petition for habeas corpus on August 12, 1999--well within the 30-day limit for direct appeals from final deportation orders. 8 U.S.C. §§ 1252(b)(1). Due to the uncertain nature of jurisdiction in this area, see Castro-Cortez, 239 F.3d at 1046, Gallo's good faith error is understandable. Accordingly, it is in the interests of justice to transfer his claims to the court in which they could properly have been brought. Id. Moreover, Gallo was not required to exhaust any administrative remedies before seeking review in this court, because there are no viable administrative remedies to a reinstatement order. Id. at 1045. Therefore, by operation of transfer, Gallo's habeas claims are properly before this court.

IV.

Although we have jurisdiction over Gallo's claims, we reject his contention that because he voluntarily departed, he does not fall within the language of the INA's summary reinstatement provision, §§ 1231(1)(5).

Gallo's primary argument is that he...

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