Arobelidze v. Holder

• Decision Date: 27 July 2011
• Docket Number: No. 10–2986.,10–2986.
• Citation: 653 F.3d 513
• Parties: Nino AROBELIDZE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

653 F.3d 513

Nino AROBELIDZE, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–2986.

United States Court of Appeals, Seventh Circuit.

Argued May 2, 2011.Decided July 27, 2011.

David Rubman (argued), Attorney, Rubman & Compernolle, Chicago, IL, for Petitioner.Anh–Thu P. Mai–Windle, OIL, Karen Y. Stewart, Ann M. Welhaf (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.Before POSNER, KANNE, and TINDER, Circuit Judges.KANNE, Circuit Judge.

Nino Arobelidze and her mother entered the United States on temporary visas in 1998. The two went on to apply for permanent residence. While their applications were pending, Nino's mother violated the terms of her temporary visa by continuing to work in the United States after the visa had expired. Both applications for residence were denied in light of Nino's mother's oversight. After Nino's mother obtained a new temporary visa and reapplied for permanent residence, Nino again applied for residence as well. The rub was that Nino turned twenty-one during the bureaucratic process. Based on Nino's change in age, the Department of Homeland Security concluded that Nino was no longer a derivative beneficiary of her mother and thus no longer eligible to apply for residence under the provision she invoked. When removal proceedings began, Nino claimed that the Child Status Protection Act (CSPA) operated to freeze her age as of the date of her mother's original visa classification petition, meaning that she was still a beneficiary of her mother as of her second application. Both the immigration judge and the Board of Immigration Appeals were unconvinced, the latter holding that the CSPA did not even apply to Nino in light of its effective date section. Nino now petitions for review of the Board's determination, claiming that its interpretation of the effective date section is incorrect. Because we agree with Nino that the Board's interpretation is unpersuasive, we grant the petition, vacate the Board's opinion, and remand the case for further proceedings.

I. Background

Nino came to the United States in 1998 at the age of fourteen. She arrived from Georgia with her mother, Dr. Rusodan Kotaria. Dr. Kotaria, a biomedical researcher, was granted a temporary visa permitting her to live and work in the United States for a brief period. As her dependant child, Nino was granted a temporary visa to accompany her.

Over the course of three years, Dr. Kotaria's star rose within the scientific community. In 2001, the Chicago Medical School filed a visa classification petition for Dr. Kotaria, labeling her an outstanding researcher. The Department of Homeland Security approved the petition in June 2002. The newly-approved petition allowed Dr. Kotaria to do two things: to convert her status so as to legally work in the United States until March 8, 2003, and to apply for permanent residence (an “adjustment of status”). As her dependant, Nino was permitted to convert her status so as to remain with her mother and—more importantly—was able to apply for permanent residence alongside her.

Nino and Dr. Kotaria applied for adjustment of status in August 2002. Both applications were still pending with the Department in March 2003, when Dr. Kotaria's temporary visa expired. Dr. Kotaria continued working beyond March 2003, in violation of her visa. In light of that error, the Department denied Dr. Kotaria's application for adjustment of status in December 2004. Nino's application was denied at the same time—as a derivative beneficiary, Nino could only obtain an adjustment if her mother's application succeeded.

Dr. Kotaria's problem was easily rectified; Nino's, as it would turn out, was not. Dr. Kotaria returned to Georgia, obtained a new temporary visa from the United States Embassy located there, and returned to the United States in mid–2005. She then applied for permanent residence, which was granted in March 2006.

Nino remained in the United States during her mother's sojourn to Georgia. Once her mother returned, Nino filed a second application for adjustment of status. The problem was that, around the time that her first application was denied, Nino had turned twenty-one. Given her change in age, the Department denied her second application for adjustment of status, reasoning that she was no longer a derivative beneficiary of her mother as of her second application and thus could not obtain an adjustment through her.

Removal proceedings for Nino commenced on February 10, 2006. At the removal hearing, Nino contested the denial of her second adjustment-of-status application. She argued that the substantive part of the CSPA operated to freeze her age at the date of her mother's initial classification petition, meaning that she was still the derivative beneficiary of her mother as of her second application for adjustment of status. The immigration judge disagreed, ruling on policy grounds that the CSPA was meant to protect children who age out during the processing of their application. It was not, according to the immigration judge, meant to assist parties whose applications were denied on other grounds. The Board affirmed in a non-precedential opinion, agreeing with the reasoning of the immigration judge.

Nino brought her case to this court on a petition for review, claiming again that the plain language of the CSPA dictated that she was still a child for adjustment purposes. We referred the case to mediation, after which the parties filed a motion with the Board to reopen the case. The Board agreed to reopen, but permitted very limited briefing, foreclosing a reply brief from Nino. The Board then issued another non-precedential opinion, again denying Nino's appeal. This time the Board relied on the effective date section of the CSPA, ruling that Nino did not qualify for any of the CSPA's benefits.

Nino again petitions this court for review.

II. Analysis

Nino's single claim in her petition for review is that the Board erred in its reading of the CSPA's effective date section. The government's response is two-fold: first, it claims that Nino did not exhaust her remedies before the Board; and second, it argues that the CSPA does not apply to Nino because she does not fall within the Act's effective date section.

A. Administrative Exhaustion

We take up the alleged failure to exhaust first. The government points out that Nino made no argument regarding the effective date provision and thus did not exhaust her administrative remedies. Nino concedes as much. She faults the limited briefing schedule imposed on the parties by the Board when the case was reopened. That schedule, Nino complains, impeded her from replying to the government's eleventh-hour argument regarding the effective date provision, an issue that no one—not the Board, the government, or Nino—raised prior to the reopening.

As the government correctly observes, an immigration petitioner must exhaust all available administrative remedies before seeking review in this court. 8 U.S.C. § 1252(d)(1). That obligation usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal. Aguilar–Mejia v. Holder, 616 F.3d 699, 704 (7th Cir.2010). We say “usually” because there are a number of exceptions to this rule. First, and less relevant here, are the exceptions that flow from the fact that the general exhaustion requirement is not “a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow.” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir.2010). Because the rule is non-jurisdictional, it is subject to waiver, forfeiture, and other discretionary considerations. Juarez v. Holder, 599 F.3d 560, 564 n. 3 (7th Cir.2010); Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.2006). Second, and more germane to this case, is the exception for issues that are not raised by the parties but instead addressed by the administrative agency itself. MBH Commodity Advisors, Inc. v. Commodity Futures Trading Comm'n, 250 F.3d 1052, 1060 n. 3 (7th Cir.2001); Watson v. Henderson, 222 F.3d 320, 322 (7th Cir.2000). This latter exception recognizes that once the Board addresses an issue on its own, the issue is “exhausted to the extent it could be,” even if it was not raised by the parties. See Nazarova v. INS, 171 F.3d 478, 489 (7th Cir.1999) (Manion, J., dissenting).

Practical considerations undergird this second exception. The exhaustion requirement serves a number of goals: it gives the Board an opportunity to apply its specialized knowledge and experience to the matter, it provides the petitioner with the relief requested in the first instance, and it provides us with reasoning to review. See Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir.2006); Gonzalez v. O'Connell, 355 F.3d 1010, 1017–18 (7th Cir.2004). When the Board addresses an issue on its own, all of these concerns are satisfied, and it therefore makes little sense to deem an issue not raised by the parties unreviewable.

The parties argue needlessly over whether we can set aside Nino's failure to bring up the effective date section, ignoring the fact that the Board exhausted the matter. In its most recent order, the Board departed from its prior reason for denying Nino's appeal. Rather than continue to rely on the policy of the CSPA, the Board ruled that Nino did not fall within the effective date section of the Act. In doing so, the Board applied its knowledge and expertise to the issue, analyzing the reach of the effective date section and providing us with reasoning to review. Exhaustion satisfied, we can proceed to Nino's claim.

B. The Effective Date Section of the CSPA

Nino primarily argues that the Board's reading of the effective date section is at odds with the text, purpose, and legislative history of that section. For its part, the government responds that Nino clearly falls outside of the...