Batanic v. I.N.S., s. 91-3250

• Decision Date: 17 December 1993
• Docket Number: Nos. 91-3250,92-2480,s. 91-3250
• Citation: Batanic v. I.N.S., 12 F.3d 662 (7th Cir. 1993)
• Parties: Ivan BATANIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 662

12 F.3d 662

62 USLW 2406

Ivan BATANIC, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 91-3250, 92-2480.

United States Court of Appeals Seventh Circuit.

Argued April 27, 1993.

Decided Dec. 17, 1993.

Royal F. Berg(argued), Kenneth Y. Geman, Chicago, IL, for petitioner.

Richard M. Evans, William J. Howard, Lori L. Scialabba, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, Richard L. Thornburg, U.S. Atty. Gen., Office of U.S. Atty. Gen., Washington, DC, A.D. Moyer, I.N.S., Chicago, IL, Marshall T. Golding(argued), Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Ivan Batanic¹petitions for review of a decision of the Board of Immigration Appeals(the "Board") that denied him leave to file an application for political asylum nunc pro tunc to May 18, 1990 under section 208(d) of the Immigration and Nationality Act(the "Act"), 8 U.S.C. Sec. 1158(d).²We reverse and remand.

IBACKGROUND

Mr. Batanic is a native of Croatia who entered the United States as a visitor in 1972 and became a lawful permanent resident in 1985 through marriage to a United States citizen.On May 4, 1989, the Immigration and Naturalization Service (the "INS") issued an Order to Show Cause and Notice of Hearing to Mr. Batanic charging him with deportability under Sec. 241(a)(11) of the Act, 8 U.S.C. Sec. 1251(a)(11), on the basis of a state court conviction for delivery of a controlled substance.An initial hearing was held on February 22, 1990, at Statesville Correctional Center in Joliet, Illinois.At the hearing, Mr. Batanic appeared without counsel and was informed of the nature of the proceedings.He advised the immigration judge (the "IJ") that his direct criminal appeal was still pending, and stated that he had tried to reach his attorney but had been unsuccessful.The IJ continued the hearing until May 18, 1990.

When the proceedings were reconvened, Mr. Batanic informed the IJ that the Illinois Appellate Court had denied his appeal and that he had retained an attorney named Paul Johnson to represent him at the hearing.Mr. Johnson, however, was not present at the hearing.He had been denied admittance to Statesville because he had not filed an appearance form in advance of the hearing even though the notice provided to Mr. Batanic stated that the form could be filed at the hearing.Although the attorney representing the INS stated that he had no objection to an adjournment, the IJ proceeded with the hearing.At that time, Mr. Batanic admitted his conviction, and the IJ found him deportable and ordered his deportation.On appeal, relying on our decision in Castaneda-Delgado v. INS, 525 F.2d 1295(7th Cir.1975), the Board reversed the order of deportation and remanded the case to the IJ.The Board held that Mr. Batanic's right to counsel had been infringed by proceeding with the hearing in the absence of his attorney.

The remand proceedings commenced on January 30, 1991.In the meantime, the amendments to the asylum statute(the "1990Amendments") had taken effect.The 1990Amendments rendered someone convicted of an aggravated felony statutorily ineligible to apply for asylum.8 U.S.C. Sec. 1158(d).³Through counsel, Mr. Batanic conceded deportability but sought leave to file an application for asylum nunc pro tunc to May 18, 1990, the date of the original deportation hearing.Although the attorney representing the INS stated he had no objection to the nunc pro tunc motion, the IJ denied the motion on the ground that Mr. Batanic was statutorily ineligible for asylum based on the 1990Amendments to the Act.

Mr. Batanic appealed the denial of his motion to file for asylum nunc pro tunc.On September 5, 1991, the Board dismissed the appeal.The Board held that it did not have the authority to ignore Mr. Batanic's statutory ineligibility for asylum or to consider his request as though it had been made prior to the enactment of the 1990 Amendments to the Act.It reasoned that to do so would exceed its authority on the ground that it lacked jurisdiction to pass on the validity of the statutes and regulations it administered.BoardOp. at 2-3, Sept. 5, 1991.

IIANALYSIS

A.Standard of Review

Pursuant to 8 U.S.C. Sec. 1105a(a), we have jurisdiction to review final deportation orders.The review of an agency's construction of a statute involves the initial determination of whether Congress has spoken precisely to the question at issue by employing traditional tools of statutory construction.Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694(1984).When Congress has done so and its intent is clear, we must reject any contrary constructions by the agency.Id.By contrast, if we determine that Congress has not spoken directly to the particular question at issue, we may not impose our own construction of the statute but must determine whether the agency's interpretation is permissible.Id. at 843, 104 S.Ct. at 2782.In such instances, "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding."Id.(collecting cases).Rather, the agency's interpretation of the statute is entitled to deference if it represents a reasonable accommodation of the conflicting policies that were committed to the agency.Id. at 843-45, 104 S.Ct. at 2782-83(citingUnited States v. Shimer, 367 U.S. 374, 382-83, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908(1961)).

B.Interpretation of the Statute

Mr. Batanic argues that the Board impermissibly denied his motion for leave to apply for asylum nunc pro tunc because he would have been eligible to apply for asylum but for the prior procedural error on the part of the IJ.He contends the Board's decision was constitutional error because it constitutes a denial of his opportunity to be heard on his asylum motion and because he was in effect denied the right to representation by counsel.

The INS contends that Congress has not spoken directly to the issue of how the amended asylum statute is to be applied to a person who claims that he would have applied for asylum before the enactment of the 1990 Amendments if he had not been wrongfully deprived of counsel.Accordingly, the INS urges us to defer to the Board's interpretation of the amended asylum statute on the ground that it is reasonable and not contrary to the clear intent of Congress.

Our first task is to determine whether Congress has directly spoken to the issue at hand.Specifically, we must search for a congressional directive on how the amended asylum statute is to be applied in a situation in which a person would have had the benefit of prior law but for a procedural error that occurred before the effective date of the 1990Amendments.We look first to the plain language of the statute.United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290(1989).In relevant part, the amended asylum statute provides that "[a]n alien who has been convicted of an aggravated felony ... may not apply for or be granted asylum."8 U.S.C. Sec. 1158(d).Further, section 515(b) of Pub.L. 101-649,104 Stat. 5053, as amendedPub.L. 102-232,105 Stat. 1752, provides that the amendments are effective as of November 29, 1990, and are applicable to convictions entered before, on, or after the date of enactment and to applications for asylum made on or after such date.Because the statute is silent with respect to the situation before us, we are obligated to defer to the Board's interpretation of the statute if it is reasonable.SeeChevron, 467 U.S. at 843, 104 S.Ct. at 2782.

We now must determine whether the Board reasonably interpreted the amended asylum statute to preclude applications for asylum nunc pro tunc when such relief would have been available but for a prior procedural error.Although we must acknowledge that, as a general proposition, we are obligated to defer to the interpretation of the statute embraced by the agency that has responsibility for its administration, it is also necessary to take into account that the obligation of deference admits of certain fundamental and important exceptions.Our deferral to an agency's interpretation stems from the Chevron decision.In Chevron, the Court stated:

We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations

has been consistently followed by this Court whenever the decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subject to agency regulations....

If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or the legislative history that the accommodation is not one that Congress would have sanctioned.

467 U.S. at 844-45, 104 S.Ct. at 2782-83(quotingShimer, 367 U.S. at 382-83, 81 S.Ct. at 1560).The principle of deference rests, according to the Court, upon the recognition that most agencies deal in complex and narrow fields.The agency, when interpreting a statute which it administers in an area in which it has expertise, is better able to evaluate and weigh the competing policy interests in that field than is a generalist federal court.⁴Therefore, according to Chevron, it is an agency's exercise of its expert judgment--in a sufficiently...