Juncaj v. Holder, 031609 FED6, 07-3539

Docket Nº:07-3539
Opinion Judge:FREDERICK P. STAMP, JR., District Judge.
Party Name:ROKO JUNCAJ; LJENA JUNCAJ; VERA JUNCAJ; TOMA JUNCAJ; ANTON JUNCAJ, Petitioners, v. ERIC H. HOLDER, JR. Attorney General, [*] Respondent.
Judge Panel:Before: MARTIN and NORRIS, Circuit Judges, and STAMP, District Judge.
Case Date:March 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ROKO JUNCAJ; LJENA JUNCAJ; VERA JUNCAJ; TOMA JUNCAJ; ANTON JUNCAJ, Petitioners,

v.

ERIC H. HOLDER, JR. Attorney General, [*] Respondent.

No. 07-3539

United States Court of Appeals, Sixth Circuit

March 16, 2009

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE BUREAU OF IMMIGRATION APPEALS

Before: MARTIN and NORRIS, Circuit Judges, and STAMP, District Judge.[**]

OPINION

FREDERICK P. STAMP, JR., District Judge.

Roko Juncaj ("Roko") entered the United States in non-immigrant status on or about August 13, 1996, and was later granted administrative asylum. His wife, Ljena, and their three children, Anton, Toma, and Vera, subsequently obtained derivative asylee status as Roko's dependents. On May 16, 2001, the Immigration and Naturalization Service ("the Service")1 terminated the asylee status of the entire Juncaj family after the Service made a finding of fraud in Roko's asylum application, making him ineligible for asylum at the time it was granted.

The Service then initiated removal proceedings. During removal proceedings, Roko challenged the finding of fraud and renewed his asylum application at a hearing in which one of the many immigration judges who presided over this case informed him that he was not required to file a new application to effect renewal. Subsequently, a different immigration judge determined that Roko had abandoned his asylum application by failing to meet a court-imposed deadline for filing applications, after which a third immigration judge ordered the petitioners removed. The petitioners requested review by the Bureau of Immigration Appeals ("BIA").2 Without comment, the BIA upheld the Immigration Court. This appeal followed.3

The petitioners argue that the Immigration Court violated their due process rights by denying Roko a merits hearing on his asylum application and the allegation of fraud forming the basis for the Service's decision to terminate asylum. This Court agrees. For the reasons that follow, this Court concludes that the order finding all forms of relief abandoned must be vacated to the extent that it applies to the previously filed asylum application; that the removal order, which was predicated upon the order finding all forms of relief abandoned, must be vacated; and that this action must be remanded for further proceedings consistent with this opinion.

I. BACKGROUND

Roko Juncaj entered the United States in non-immigrant visitor status on August 13, 1996, and was authorized to remain until October 22, 1996. Sometime thereafter, he applied for administrative asylum, which the Service granted during the summer of 1997.4 Roko then filed asylum petitions on behalf of his wife and three children, who were subsequently admitted to the United States in dependent, or derivative, asylee status on October 14, 1998.

On May 16, 2001, the Service terminated Roko's asylee status, which automatically terminated his dependents' derivative status. According to the termination notice, when Roko's wife appeared for an interview at the United States Consulate to secure her entry visa, she repudiated the testimony that Roko had offered at his asylum interview.5 The termination notice states that Roko appeared for a termination interview at the Service on March 5, 2001, and that he was unable to rebut the information provided by the Consulate.6 The Service then issued Roko at least two Notices to Appear ("NTA"): one was dated September 6, 2001, and the other, which was later withdrawn, was dated May 30, 2003.7 The September 6, 2001 NTA issued to Roko alleges:

1. You are not a citizen or national of the United States[;]

2. You are a native of Yugoslavia 8 and a citizen of Yugoslavia;

3. You were admitted to the U.S. at or near NY on or about August 13, 1996 as a non-immigrant visitor with authorization to remain until October 22, 1996;

4. You have remained in the U.S. beyond October 22, 1996, without authorization from the Service; [and]

5. On May 16, 2001, your administrative grant of asylum was terminated because you materially misrepresented your claim in order to procure your admission as an immigrant.

The NTA then charges that Roko is subject to removal under INA § 237(a)(1)(B) because he has remained in the United States beyond the authorized period of stay granted when he was admitted to the United States as a non-immigrant visitor. In other words, under the charge presented in the NTA, Roko is subject to removal as a non-immigrant visa overstay.

NTAs were also issued to Roko's dependents on September 6, 2001. As to each dependent, the NTAs assert:

1. You are not a citizen or national of the United States;

2. You are national of Yugoslavia and a citizen of Yugoslavia;

3. You were admitted to the United States at or near Newark, N.J. on or about October 14, 1998, as a dependant asylee[;]

4. The principal applicant's asylum was terminated on May 16, 2001[;]

5. You are an immigrant not in possession of a valid immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Act.

The NTAs then charge that Roko's dependents are subject to removal under INA § 212(a)(7)(A)(i)(I) for unlawful entry without proper documentation. On April 17, 2002, the Service filed the NTAs with the Immigration Court, thus initiating the removal proceedings.

At a hearing on August 8, 2003, held before Immigration Judge Christian, 9 Roko admitted allegation 1, that he was not a citizen or national of the United States; admitted allegation 2, that he was a native and citizen of Yugoslavia; and admitted allegation 3, that he was admitted as a nonimmigrant visitor at or near New York on or about August 13, 1996, with authorization to remain until October 22, 1996. Roko denied allegation 4, that he had remained in the United States beyond October 22, 1996, without authorization; and he denied allegation 5, that on May 16, 2001, his administrative grant of asylum was terminated because he had materially misrepresented his claim to procure his admission as an immigrant. Regarding allegation 5, Roko admitted that his grant of asylum had been terminated but denied that the termination was proper.

Immigration Judge Christian made a finding of removability;10 set a deadline of December 31, 2003 for filing alternate forms of relief; set the matter for a November 8, 2004 hearing on the merits of Roko's asylum application, which necessarily implicated the Service's finding of fraud which had precipitated the termination notice; and set a deadline of fourteen days before the merits hearing for supplementing the asylum application. At the hearing, Immigration Judge Christian stated that Roko did not need to file a new application to proceed on the merits and indicated that he expected the Service to file a copy of Roko's previously filed asylum application with the Immigration Court.

No applications were filed by the December 31, 2003 deadline. On September 9, 2004, the Service filed a motion to deny as abandoned all applications for relief from removal because neither Roko nor his dependents had filed any further applications for relief, and the deadline established by the court had passed. By order dated September 28, 2004, Immigration Judge Elizabeth A. Hacker granted the Service's motion, stating: "Since the [petitioners] have failed to timely file the application for asylum and other forms of relief[, ] it is deemed abandoned and is therefore denied."11

Subsequently, Immigration Judge Marsha K. Nettles ordered the petitioners removed. During the removal hearing, the petitioners' counsel repeatedly attempted to argue that his clients were being denied a full and fair hearing on the alleged finding of fraud in Roko's asylum application. Relying heavily upon Immigration Judge Hacker's earlier order deeming all forms of relief abandoned, and therefore denied, Immigration Judge Nettles refused to consider the issue of fraud, which she indicated was not before the court because there were no asylum applications to review and because the Service had not alleged fraud in its September 16, 2001 NTAs. Petitioners' counsel orally moved to set aside the order by Immigration Judge Hacker deeming all applications for relief as abandoned.12 The Immigration Court did not specifically rule on this motion, but given the reliance Immigration Judge Nettles placed on Judge Hacker's order in the subsequent written order of removal, the motion was effectively denied.

The petitioners appealed to the BIA, arguing that the Immigration Court had erred by denying them the opportunity for a hearing on the merits of fraud and misrepresentation in the context of Roko's asylum application and by not setting aside Judge Hacker's order.13 The BIA summarily affirmed. The petitioners now seek review of the BIA's order affirming the Immigration Court's order of removal.

II. ANALYSIS

Because the respondent has raised jurisdictional objections to this appeal, this Court must first answer the threshold question of whether, as the respondent alleges, the petitioners have forfeited or waived the jurisdiction this Court would normally have over this case. Only if this Court has jurisdiction may it address the question of whether the petitioners' due process rights were adequately protected during the proceedings that resulted in their removal orders.

A. Jurisdiction

The BIA had jurisdiction over the petitioners' petition for review pursuant to 8 C.F.R. § 1003.1(b)(3), which confers appellate jurisdiction over decisions of immigration judges in removal proceedings. This Court's jurisdiction is predicated upon 8 U.S.C. § 1252(a), which gives the Court of Appeals exclusive jurisdiction to review final orders of removal. The petitioners' petition for review by this Court was timely filed within thirty days of the BIA's order. INA § 242(b), 8 U.S.C. § 1252(b)(1). Venue properly lies in this Court because the proceedings...

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