Goncalves v. I.N.S.

• Decision Date: 09 April 1993
• Docket Number: Nos. 92-1122,92-2272,s. 92-1122
• Parties: Jose Manuel GONCALVES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 830

6 F.3d 830

62 USLW 2201

Jose Manuel GONCALVES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 92-1122, 92-2272.

United States Court of Appeals, First Circuit.

Heard April 9, 1993.

Decided Sept. 28, 1993.

David Yavner, Providence, RI, for petitioner.

Donald Keener, Acting Asst. Director, with whom Stuart M. Gerson, Asst. Atty. Gen., Civil Div., Anne C. Arries, Office of Immigration Litigation, Civil Div., Dept. of Justice, and David M. McConnell, Atty., Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, DC, were on brief for respondent.

Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges.

BREYER, Chief Judge.

The Board of Immigration Appeals has a general procedural rule that says it "may ... reopen or reconsider any case in which it has rendered a decision." 8 C.F.R. Sec. 3.2 (1993). In a series of cases, however, the Board has developed an exception to this procedural rule. The exception relates to a certain kind of Board decision: whether or not to grant "discretionary relief" which would permit an alien, otherwise "deportable," nonetheless to remain in the United States. Immigration and Nationality Act (INA) Sec. 212(c), 8 U.S.C. Sec. 1182(c). According to the procedural exception, once the Board has denied the alien's initial "discretionary relief" application (and thus the Board has finally found the alien "deportable"), the alien may not ask the Board to reopen his deportation proceedings for further consideration of his application. See, e.g., Matter of Cerna, Int.Dec. 3161, slip op. at 3-4 (BIA Oct. 7, 1991).

This appeal requires us to decide whether the Board's "no reopening" exception to its ordinary "reopening" rule is lawful. The Third and Fifth Circuits have held that it is lawful. SeeKatsis v. INS, 997 F.2d 1067 (3d Cir.1993); Ghassan v. INS, 972 F.2d 631, 637 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1412, 122 L.Ed.2d 783 (1993); see alsoCerna v. INS, 979 F.2d 212, 213 (11th Cir.1992) (table), aff'g without opinion Matter of Cerna, Int.Dec. 3161 (BIA Oct. 7, 1991). The Second and Ninth Circuits have held that it is not. SeeButros v. INS, 990 F.2d 1142 (9th Cir.1993) (en banc); Vargas v. INS, 938 F.2d 358 (2d Cir.1991). We, like the latter two circuits, do not understand the basis for the "no reopening" exception. In our view, the Board has not properly explained why it will consider motions to reopen in most cases but not in the particular circumstances illustrated here. We therefore hold that the Board may not invoke this exception as grounds for refusing to consider the petitioner's motion to reopen in this case, and we remand the case to the Board for further consideration of that motion.

I

A. Legal Background

To understand the issue before us, the reader must keep in mind the following legal background. First, the INA lists a host of grounds for excluding or deporting aliens, including conviction of a drug-related crime. See, e.g., 8 U.S.C. Secs. 1182(a)(2) (exclusion), 1251(a)(2)(B) (deportation). The Act also says that a certain class of these "deportable" aliens--those who have lived here for seven years as aliens "lawfully admitted for permanent residence"--can ask the Attorney General (i.e., the Board, see 8 U.S.C. Sec. 1103(a); 8 C.F.R. Secs. 3.0, 3.1(a), (b)(3), 212.3(a)(2), (e)(3) (1993)) to exercise a kind of equitable discretion that would permit them to remain here even though they have, for example, committed a drug crime. INA Sec. 212(c), 8 U.S.C. Sec. 1182(c) (see Appendix for text). The Act defines the class of those eligible for this relief as those who, for seven years,

hav[e] been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

8 U.S.C. Sec. 1101(20) (emphasis added) (defining "lawfully admitted for permanent residence").

Second, an Immigration Judge (IJ) normally will make the initial decision as to whether a particular alien is "deportable," 8 C.F.R. Sec. 242.8(a) (1993), and if so, whether he is eligible to apply for section 212(c) "discretionary relief." Id. Sec. 212.3(a)(2), (e). If the alien is eligible, the IJ will further decide whether, given the "equities," the Attorney General will grant that relief. Id.; Matter of Marin, 16 I. & N.Dec. 581, 584 (BIA 1978); see generally 3 Charles Gordon & Stanley Mailman, Immigration Law and Procedure Sec. 74.01[a]-[b] (1993). If dissatisfied with the result, the alien may appeal to the Board of Immigration Appeals, 8 C.F.R. Secs. 3.1(b)(3), 212.3(e)(3) (1993), which may hold a hearing, take evidence and decide the issues de novo. Hazzard v. INS, 951 F.2d 435, 440 n. 4 (1st Cir.1991); Matter of Lok, 18 I. & N.Dec. 101, 106 (BIA 1981); 1 Gordon & Mailman, supra, Sec. 3.05[b]. If the Board reaches a negative decision, the regulations (while phrased negatively, see infra pp. 832-33) indicate that the alien normally may ask the Board either to reconsider its decision or to reopen the proceeding in light of "circumstances which have arisen subsequent to the hearing." 8 C.F.R. Sec. 3.2 (1993). The Supreme Court has pointed out that the regulation governing motions to reopen "does not affirmatively require the Board to reopen the proceedings under any particular condition." INS v. Jong Ha Wang, 450 U.S. 139, 144 n. 5, 101 S.Ct. 1027, 1030 n. 5, 67 L.Ed.2d 123 (1981) (per curiam). The issue before us, however, concerns not whether the Board must grant the motion, but whether it must consider it.

Third, despite these regulations, the Board has held in a series of cases that an alien, resident here lawfully for seven years but under an administratively final deportation order, may not ask the Board to reopen a proceeding ordering deportation to obtain further consideration of "discretionary relief" under section 212(c). The Board has based these holdings on the theory that a final Board decision ordering deportation means that the alien's "status" has "changed." He is therefore no longer "lawfully admitted for permanent residence," see 8 U.S.C. Sec. 1101(20), and thus falls outside the category of those whom section 212(c) permits to ask for discretionary relief. And since the alien would now be ineligible to apply for section 212(c) relief in the first instance, see, e.g.,Rivera v. INS, 810 F.2d 540, 541 (5th Cir.1987), the Board reasons that he also may not move to reopen a previously decided section 212(c) application. See, e.g.,Katsis, 997 F.2d at 1069; Butros, 990 F.2d at 1143. The Board does not, however, deny the alien the right to move for reconsideration of the earlier section 212(c) application. Cerna, slip op. at 5.

B. Factual Background

The case before us involves a resident alien, Jose Manuel Goncalves, who entered the United States as a baby in 1968 and who has lived here ever since. He has committed serious crimes, including drug crimes. In late 1989, the INS began deportation proceedings. Goncalves conceded that he was deportable. Goncalves then asked the Attorney General to exercise equitable discretion in his favor under section 212(c). An IJ rejected this request on May 21, 1991 and ordered him deported. On January 8, 1992, the Board of Immigration Appeals, after weighing the various equities for and against Goncalves, also rejected the "discretionary relief" request and affirmed the IJ, thus rendering Goncalves' deportation order "final." 8 C.F.R. Sec. 243.1 (1993). Goncalves then moved to reopen the deportation proceeding so that he could present letters and an employment record that, in his view, amounted to new evidence of his rehabilitation sufficient to change the outcome of the Board's "discretionary" calculus.

After a series of proceedings not here relevant, the Board, on October 8, 1992, denied the motion to reopen on the sole ground that Goncalves, his "status ... having changed" by virtue of the Board's "final" deportation order of January 8, 1992, was no longer "lawfully admitted for permanent residence" and therefore "[could] not establish a prima facie case for relief." The Board did not address the merits of his request to reopen. Goncalves now appeals the Board's denial of his motion to reopen. He argues that the law requires the Board at least to consider it. We believe he is correct.

II Analysis

The Board's refusal to allow aliens to make certain "reopening" motions is, in essence, a detail of its procedure. In deciding the lawfulness of such a detail, we recognize that Congress intended the Attorney General to have considerable leeway in working out the precise procedures for determining contested issues related to deportation and "discretionary relief." 8 U.S.C. Secs. 1103(a), 1182(c). The Attorney General has delegated the authority to work out such procedures to the Board. 8 U.S.C. Sec. 1103(a); 28 C.F.R. Secs. 0.115-0.117 (1991); 8 C.F.R. Secs. 3.0, 3.1(a), 3.1(d)(3) (1993). We therefore must respect the Board's judgment in such matters. See, e.g.,FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940); Union of Concerned Scientists v. Nuclear Regulatory Comm'n, 920 F.2d 50, 54 (D.C.Cir.1990); American Trucking Ass'ns v. United States, 627 F.2d 1313, 1320-21 (D.C.Cir.1980) (deferring to agency regulations governing intervention on ground that "procedural regulations are generally within the discretion of the agency"); Wagner Seed Co. v. Bush, 946 F.2d 918, 920 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1584, 118 L.Ed.2d 304 (1992). The Administrative Procedure Act provides, however, that the Board may not act arbitrarily or "abuse" its "discretion." 5 U.S.C. Sec. 706(2)(A). And, even though we give the Board considerable leeway, we nonetheless conclude that it has acted arbitrarily in this instance. We reach this conclusion for the following three reasons, taken together.

First, one of the Board's procedural regulations strongly...