Errera v. Holder

• Decision Date: 11 September 2012
• Docket Number: Agency No. A077-138-504,No. 10-72835,10-72835
• Parties: ERIBERTO ERRERA, AKA Eriberto Errera-Longoria, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

ERIBERTO ERRERA, AKA Eriberto Errera-Longoria, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.

No. 10-72835

Agency No. A077-138-504

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date: September 11, 2012

Argued and Submitted March 14, 2012

NOT FOR PUBLICATION

MEMORANDUM^*

On Petition for Review of an Order of the

Board of Immigration Appeals

San Francisco, California

Before: CALLAHAN and BEA, Circuit Judges, and BENNETT, District Judge.^**

Eriberto Errera seeks review of an order by the Board of Immigration Appeals ("BIA") determining that he was removable and ineligible for relief fromremoval. He argues that he is entitled to relief because the Department of Homeland Security ("DHS"): (1) improperly sought to introduce evidence that it had failed to present to the Immigration Judge ("IJ"); and (2) provided him with an incomplete Form I-294 when he was removed in 2003. We deny the petition in part and dismiss it in part.¹

1. Even accepting that DHS's motion to reconsider (which the IJ denied) was improper, Errera was not prejudiced by the motion because the BIA issued a sua sponte remand to the IJ for further factfinding. Accordingly, to prevail Errera must show that the BIA exceeded its authority in issuing a sua sponte remand.

Our opinion in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012), holds that the BIA has the authority pursuant to 8 C.F.R. § 1003.1(d)(3)(iv) to issue a sua sponte remand. "Where the IJ has not made a finding of fact on a disputed matter, and such a finding is necessary to resolution of the case, the BIA must remand to the IJ to make the required finding." Id. at 1170. "[I]f the BIA believes that it cannot decide the case without resolution of these facts, then it must remand to the IJ for further factual findings." Id. at 1173. "If the BIA concludes that it cannot properly review the IJ's decision without further factual development of the record,then the Board must remand the case to the IJ so that he may make the requisite factual findings." Id. at 1177. These statements necessarily imply that the BIA has the power to remand sua sponte.

In so ruling, we agreed with the Second Circuit's opinion in Padmore v. Holder, 609 F.3d 62, 70 (2d Cir. 2010) ("If on remand there is a need to develop the factual record further, a task outside the scope of the BIA's authority, see 8 C.F.R. §§ 1003.1(d)(3)(i), (iv), we instruct the BIA to send this case to an IJ for further findings of fact."). See also Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir. 2009) (holding that 8 C.F.R. § 1003.1(d)(3)(iv) unambiguously "requires the BIA to remand the factual inquiry to the IJ rather than making its own factual finding on the matter").

We are bound by our ruling in Rodriguez that the BIA may sua sponte remand a matter to the IJ for further factfinding. See Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997) ("It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel.").

Here, the BIA did not act arbitrarily or abuse its discretion in sua sponte remanding Errera's case for further factfinding. The IJ failed to determine the nature of Errera's departures from the United States in 1985 and 2003. Indeed, the uncontroverted evidence on remand was that Errera had been ordered removed onFebruary 20, 2003, and thus was inadmissible and ineligible for the adjustment of status that he sought.

In sum, the Ninth Circuit has held the BIA has the authority to issue a sua sponte remand for further factfinding and the BIA reasonably did so in this case. Accordingly, Errera was not prejudiced by the DHS's improper request that the IJ reconsider his opinion. Errera does not otherwise challenge the basis for the BIA's removal order following the remand to the IJ.

2. We decline Errera's request that we defer submission pending the en banc proceedings in Garfias-Rodriguez v. Holder, No. 09-72603. Garfias-Rodriguez concerns a different subsection of the statute from Duran-Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007). The mandate in Duran-Gonzales issued in January 2009, and thus Duran-Gonzales was the applicable extant Ninth Circuit law when the BIA considered Errera's case when he appealed from the IJ's adverse decision on remand.

3. We dismiss Errera's claim that the Form I-294 that he was given when he was removed in 2003, on which certain boxes were not checked, was inadequate. He failed to raise this argument before the BIA or the IJ, and thus, we lack jurisdiction to consider the claim. Arsdi v. Holder, 659 F.3d 925, 928-29 (9th Cir. 2011). Were we to reach the argument, we would deny relief because the claimthat the incomplete form constitutes a denial of due process is tenuous at best, see United States v. Ullyses-Salazar, 28 F.3d 932, 936 (9th Cir. 1994), overruled on other grounds, United States v. Gomez-Rodriguez, 96 F.3d 1262, 1265 (9th Cir. 1996) (en banc) , and there is no indication that the form or its contents had any effect on Errera's decision to reenter the United States within three days of being removed.

The petition for review is DISMISSED to the extent that it seeks review of Errera's claim concerning the Form I-294 he was given, and is otherwise DENIED.CALLAHAN, Circuit Judge, concurring:

While we all agree that Errera is not entitled to relief, I write to indicate that, unlike my colleagues, I do not think that our decision in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) is wrong, or that the Board of Immigration Appeals ("BIA") lacks the authority to issue a sua sponte remand.

Perhaps 8 C.F.R. § 1003.1(d)(3)(iv) is not a model of clarity. Nonetheless, its provision that, "[i]f further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge, or, as appropriate, to the Service," certainly admits to the interpretation that the BIA may issue a sua sponte remand. Indeed, Judge Bennett concedes as much.

If the regulation - to the extent that it does not simply give the BIA authority to issue a sua sponte remand - is ambiguous, there are several reasons for holding that it does authorize sua sponte remands. The Department of Homeland Security ("DHS") has interpreted the regulation as authorizing sua sponte remands. See In re S-H-, 23 I & N. Dec. 462 (BIA 2002). The Second Circuit has held that the BIA may issue a sua sponte remand, Padmore v. Holder, 609 F.3d 62, 70 (2d Cir. 2010), and we so implied in Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir. 2009).

Furthermore, a contrary position would leave the BIA in an untenableposition. All agree that, pursuant to § 1003.1(d)(3), the BIA is prohibited from making findings of fact. Rodriguez, 683 F.3d at 1170 (noting that BIA regulations prohibit the BIA from making findings of fact and citing other circuit court cases in accord). What then is the BIA to do where, as stated in Rodriguez, 683 F.3d at 1170, "the IJ has not made a finding of fact on a disputed matter, and such finding is necessary to resolution of the case?"

Judge Bennett's solution appears to be that the BIA could sua sponte reopen the proceedings, but that otherwise DHS must promulgate new regulations that more clearly set forth the BIA's authority to issue a sua sponte remand. He presumes that the BIA's authority to reopen is clear, but 8 C.F.R. § 1003.2(a) might not survive the type of scrutiny he imposes on §1003.1.² In any event, Judge Bennett apparently would have the BIA render a decision on an inadequate record. Interestingly, should a party seek judicial review from such a decision, heaccepts that the Ninth Circuit could direct the BIA to remand for further factfinding, even though the BIA itself could not do so.³ Thus, interpreting the regulation and case law in the manner suggested by Judge Bennett would hamstring the BIA, tends to undermine the respect due to the BIA as an appellate adjudicative body, and promotes inefficiency. These are all good reasons for not adopting such an interpretation of an ambiguous regulation.

For the reasons set forth in our opinion in Rodriguez, 683 F.3d 1164, set forth in the Second Circuit's opinion in Padmore, 609 F.3d 62, and foretold in Brezilien, 569 F.3d 403, I would hold that the BIA has the authority to issue sua sponte remands pursuant to 8 C.F.R. § 1003(d)(3)(iv), even if I were writing on a blank slate.

Finally, I disagree with Judge Bennett's suggestion that because the BIA erroneously remanded Errera's case, Errera is somehow entitled to the application of law as it existed at the time of the remand, rather than as it existed when his case came back before the BIA or as it now exists. See Judge Bennett's concurringstatement § 2C. I know of no authority for somehow dialing back the passage of time whenever an agency makes a procedural mistake that delays subsequent judicial review, and Judge Bennett offers none.

I join my colleagues in complimenting counsel and particularly the law students who represented Errera on their briefing and argument of this case.BENNETT, District Judge, joined by BEA, Circuit Judge, concurring:

I agree with the majority that this case should not be stayed pending the en banc proceedings in Garfias-Rodriguez v. Holder and that Errera's claim concerning his incomplete Form I-294 should be dismissed.

I write separately, however, as to Errera's remaining challenge to the Board of Immigration Appeals's ("BIA") final order of removal. Specifically, Errera argues that an immigration judge ("IJ") correctly adjusted Errera's status under 8 U.S.C. § 1255(i) in his initial immigration court proceedings in 2006. Errera maintains that the Department of Homeland Security's ("DHS") motion to reconsider and appeal of the IJ's order, in which DHS argued that Errera was inadmissible due to a 2003 order of removal, were improper under the regulations because DHS premised its arguments on evidence of Errera's 2003 removal that it failed to present to...