Baria v. Reno, 94-16061

• Decision Date: 05 September 1996
• Docket Number: No. 94-16061,94-16061
• Citation: 94 F.3d 1335
• Parties: 96 Cal. Daily Op. Serv. 6640, 96 Daily Journal D.A.R. 10,881 Rodolfo Monroy BARIA, Plaintiff-Appellant, v. Janet RENO, Attorney General, United States Attorney General; Donald A. Radcliffe, District Director, Immigration & Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1335

94 F.3d 1335

96 Cal. Daily Op. Serv. 6640, 96 Daily Journal

D.A.R. 10,881

Rodolfo Monroy BARIA, Plaintiff-Appellant, v. Janet RENO, Attorney General, United States Attorney General; Donald A. Radcliffe, District Director Immigration & Naturalization Service Defendants-Appellees.

No. 94-16061.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1996.

Decided Sept. 5, 1996.

George K. Noguchi, Honolulu, Hawaii, for plaintiff-appellant.

Mary R. Osaka, United States Department of Justice, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawai'i, Harold M. Fong, District Judge, Presiding. D.C. No. CV-93-00834-HMF.

Before FLETCHER, D.W. NELSON and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

Rodolfo Baria, a citizen of the Philippines, held the status of a permanent-resident alien. The Board of Immigration Appeals rescinded his status. He now appeals from the district court's dismissal on summary judgment, in a decision published at 849 F.Supp. 750, of his complaint challenging the rescission. We reverse and remand on procedural grounds.

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

A. Baria's Entry and Marriage

Baria entered the U.S. at Honolulu on a nonimmigrant visa, apparently as part of a musical troupe, in June 1984. He was authorized to stay, with extensions of his visa, for a year. Shortly after coming to the U.S., Baria went to Las Vegas, where his sister and stepmother lived. Approximately two months after his arrival, Baria filed in Nevada for divorce from Anita Baria, his wife of 21 years. She lives in the Philippines, as do their three children. In December 1984, Baria moved to Hawai'i and shortly thereafter he met Bibiana Patoc, a widow with two sons. She is a naturalized U.S. citizen of Philippine birth. Shortly after they met, he moved in with her. Baria's divorce from Anita became final late in May 1985. On June 14, 1985, the day after his visa expired, Baria and Patoc married, and almost immediately Patoc applied for immediate-relative status for Baria. On September 20, 1985, the I.N.S. adjusted Baria's status to that of a permanent resident. In November 1986, Baria stopped living with Patoc. In March 1987, Patoc told the I.N.S. that Baria had left their residence and that Baria had married her in order to gain immigration benefits. In February 1988 Patoc filed for divorce.

B. Initiation of Rescission Proceedings

On January 28, 1988, the I.N.S. issued a notice of intent to rescind its prior adjustment of Baria's status on the grounds that Baria's marriage to Patoc was not valid for immigration purposes. Rescission is authorized The I.N.S. started deportation proceedings against Baria but terminated them because the district director concluded upon further review that Baria's answer to the notice of intent to rescind entitled Baria to a hearing under 8 C.F.R. § 246.3.

by 8 U.S.C. § 1256 if, within five years of the adjustment of status, the Attorney General determines that "the person was not in fact eligible for such adjustment of status"; proceedings to rescind are governed by 8 C.F.R. §§ 246.1 to 246.9. On March 15, 1988 ¹ Baria, through his attorney, responded to the notice with an affidavit, an unsworn statement, letters written by Patoc, and a statement from a family acquaintance. On May 16, 1988 the I.N.S. district director rescinded Baria's adjustment, ruling that the evidence submitted "do[es] not overcome all the reasons which were stated in [the] notice of intent".

C. Rescission Hearing and Appeal

In December 1988, a hearing was held at which documentary evidence was submitted and Patoc and Baria both testified. Baria alleges additional facts about the hearing that do not appear in the record. He alleges that at a point in which the hearing was off the record for a change of tapes, the immigration judge "indicated to Baria's counsel that he was going to rule on the case in Baria's favor and that it was not necessary for Baria's counsel to present any evidence or to question Baria" and that Baria's counsel therefore did not present a case but simply rested on his motion to terminate.

The immigration judge in fact ruled that the I.N.S. had not met its burden and terminated the rescission proceeding. The I.N.S. appealed to the Board of Immigration Appeals, which sustained the appeal, reversed the immigration judge, and rescinded the grant to Baria of permanent-resident status.

D. District Court Proceedings

Two months later, Baria filed a complaint for a declaratory judgment, mandamus, and injunctive relief in the district court challenging the Board's decision. On February 28, 1994, the government moved the court to consider submission of the case on the record; on 4 March the government moved to convert that motion into one for summary judgment. On April 13, Baria opposed considering the motion as one for summary judgment. On April 18, the court heard argument and ruled that the motion would be considered one for summary judgment; it then immediately heard argument on the summary judgment motion. On April 29, 1994 the court issued an order granting summary judgment to the government. Baria has timely appealed.

JURISDICTION

Baria invoked the district court's jurisdiction under 8 U.S.C. § 1329, ² 28 U.S.C. § 1331 (federal-question jurisdiction), and 28 U.S.C. §§ 2201-02 (the Declaratory Judgment Act); the district court ruled only that it had jurisdiction under the first of these heads. Baria invokes this court's jurisdiction under 28 U.S.C. § 1291 and 8 U.S.C. § 1105a(a). ³ Although neither party in its brief has contested the jurisdiction of either this court or the district court, ⁴ we have an The posture of this case is somewhat unusual, as courts of appeals most often review rescission proceedings on a petition for review from the Board, not on appeal from the district court. Rescission is usually challenged as part of a petition for review of concurrent or subsequent deportation proceedings and 8 U.S.C. § 1105a provides that the courts of appeals have exclusive jurisdiction to review final orders of deportation. In Waziri v. United States Immigration and Naturalization Service, 392 F.2d 55, 57 (9th Cir.1968), this court held that where a petitioner has been ordered deported on the basis of an underlying order rescinding the petitioner's adjustment of status, "[t]he interdependency of the two orders requires that the [§ 1105a] power of review extend to the order rescinding" an adjustment of status. The court reaffirmed its Waziri holding in Bachelier v. Immigration and Naturalization Service, 625 F.2d 902, 904 (9th Cir.1980) and discussed it approvingly in Chadha v. Immigration and Naturalization Service, 634 F.2d 408, 412 (9th Cir.1980), aff'd, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). ⁵ See also Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983) ("[T]he term 'final orders' in [§ 1105a] 'includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing.' ") (quoting Chadha v. Immigration and Naturalization Service, 634 F.2d at 412 (discussing Waziri )).

independent obligation to satisfy ourselves as to the jurisdiction of both courts. Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir.1994). Questions of subject-matter jurisdiction are reviewed de novo. Galt G/S v. Hapag-Lloyd AG, 60 F.3d 1370, 1373 (9th Cir.1995).

While Waziri allows this court to review underlying rescission proceedings upon a petition for review of a deportation order, this court has also held that it has no jurisdiction under § 1105a to consider a petition for review of a rescission order in the absence of a deportation order. Kuh v. Immigration and Naturalization Service, 758 F.2d 370, 371 (9th Cir.1985). This is because § 1105a(a) grants the courts of appeals exclusive judicial review only "of all final orders of deportation ... made ... pursuant to administrative proceedings under [8 U.S.C. § 1252(b) ]". The Supreme Court has construed this language narrowly, holding that "the judicial review provisions of [§ 1105a] embrace only those determinations made during a proceeding conducted under [§ 1252(b) ]". Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 216, 88 S.Ct. 1970, 1976, 20 L.Ed.2d 1037 (1968). The Kuh court pointed out that rescission orders, of course, are not "final orders of deportation", and they are made pursuant to 8 U.S.C. § 1256, not § 1252(b). 758 F.2d at 371. Thus, Baria could not have petitioned directly to this court for review of the order rescinding his permanent-resident status. See also Bachelier v. Immigration and Naturalization Service, 548 F.2d 1157, 1158 (5th Cir.1977) ("Even if rescission proceedings are 'in the nature' of deportation proceedings they are not 'final orders of deportation' as specified by [§ 1105a] for direct review."); Chadha, 634 F.2d at 412 (citing Bachelier and noting in dicta that a rescission decision is not immediately appealable under § 1105a).

Some language in Waziri might be read, however, to suggest that a district court does not have jurisdiction to entertain a challenge to a rescission order and that an alien whose status is rescinded cannot challenge that rescission until a deportation order is entered, allowing review in the court of appeals pursuant to § 1105a Certainly [§ 1105a's] objective of expediti[ng the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts] would be thwarted if this court approved perfunctorily the deportation order while the district court reviewed the crucial underlying rescission order, and afterward this court reviewed on appeal the determination of the district court.

392 F.2d at 57. The holding of Waziri, however, is not that a district court has no jurisdiction to review a rescission order...