Katsis v. I.N.S.

Decision Date11 June 1993
Docket NumberNo. 92-3608,92-3608
Citation997 F.2d 1067
PartiesStavros KATSIS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

James J. Orlow, Orlow & Orlow, Philadelphia, PA, for petitioner.

Frank W. Hunger, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, David J. Kline, Carl H. McInyre, Jr. and Charles E. Pazar, Attys., Office of Immigration Litigation, Dept. of Justice, Washington, DC, for respondent.

Before: GREENBERG, NYGAARD, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

In this case, an alien who was once lawfully admitted to the United States for permanent residence later became subject to an administratively final deportation order. After the entry of this final deportation order, the alien moved to reopen immigration proceedings to obtain discretionary relief from deportation. By statute, such relief is available only to aliens lawfully admitted for permanent residence. This petition for review presents the question whether the Board of Immigration Appeals (BIA or Board) may deny as a matter of law a motion to reopen proceedings to obtain discretionary relief from deportation on the ground that the alien movant is no longer statutorily eligible for such relief because his status as an alien lawfully admitted for permanent residence changed when he became subject to an administratively final deportation order. Concluding that it may, we deny the petition for review.

I. BACKGROUND

Petitioner Stavros Katsis is a native and citizen of Greece. He was admitted to the United States as a lawful permanent resident in 1983. In 1988, he was convicted of a controlled substance violation, for which he served a prison term of approximately two years. Based on this conviction, in January 1989, Respondent Immigration and Naturalization Service (INS) commenced deportation proceedings against Katsis under section 241(a)(11) of the Immigration and Nationality Act (INA or Act), 8 U.S.C.A. § 1251(a)(11) (West 1970).

During a series of hearings in 1990 before various immigration judges (IJ), Katsis conceded deportability and applied for a waiver of deportability under section 212(c) of the Act, 8 U.S.C.A. § 1182(c) (West 1993). Section 212(c) permits aliens "lawfully admitted for permanent residence" to apply for such a waiver. In November 1990, the IJ found Katsis deportable. At that same time, although finding Katsis to be statutorily eligible for a section 212(c) waiver, the IJ denied him the requested waiver on discretionary grounds after determining that the considerations favorable to permitting Katsis to remain in this country did not outweigh his conviction for a serious drug offense.

The IJ's finding of deportability was never appealed; however, in November 1990, Katsis appealed to the Board the IJ's denial of the section 212(c) waiver. The Board affirmed in September 1991. Katsis does not dispute the INS's assertion that he became subject to an administratively final deportation order when the Board affirmed the IJ's decision. Katsis petitioned this court for review of the Board's decision to deny him the waiver, and in an unpublished memorandum opinion, we affirmed. Katsis v. INS, 972 F.2d 1331 (3d Cir.1992) (Rosenn, J.).

In August 1992, Katsis submitted a motion to the Board to reopen proceedings under 8 C.F.R. §§ 3.2 and 3.8. The motion set forth the existence of "new evidence that would serve to bolster his equities for a discretionary determination under section 212(c)" as required under those regulations. In re Katsis, BIA File No. A37 588 636, slip op. at 3 (Sept. 16, 1992). The Board denied this motion as a matter of law without reaching the discretionary aspect of the statute because it determined that Katsis was statutorily ineligible for waiver at the time he submitted his motion to reopen. Id. The Board so determined because it deemed he was no longer an alien "lawfully admitted for permanent residence" at the time he filed his motion to reopen, as required by section 212(c), in that he was then subject to an administratively final order of deportation.

Katsis timely filed in this court a petition for review of the denial of his motion to reopen. 1

II. DISCUSSION
A. Standard of Review

Resolution of this case depends on application of the proper standard of review for the Board's construction of INA provisions. The Supreme Court clearly set forth the framework for review of an agency's construction of the statute it administers in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

As background, the Court stated, " 'The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.' " Chevron, 467 U.S. at 843, 104 S.Ct. at 2782 (omission in original) (citing Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)). When, as here, Congress has implicitly delegated authority to an agency on a particular question, i.e., where it has left a gap without expressly delegating "authority to the agency to elucidate a specific provision of the statute by regulation[,] ... a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. at 2782 (footnotes omitted). Under a well settled principle of deference, "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Id. (footnote omitted). See also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) ("When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.").

Thus, "when a court reviews an agency's construction of the statute it administers, it is confronted with two questions." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781.

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted). See also Butros v. INS, 990 F.2d 1142, 1148-49 (9th Cir.1993) (en banc) (Trott, J., dissenting). 2

In sum, "the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program." INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987) (citations omitted), unless that interpretation is "arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. See also Butros, 990 F.2d at 1149 (Trott, J., dissenting).

B. Applicable Law

Motions to reopen immigration proceedings "are disfavored for the same reasons as are ... motions for a new trial on the basis of newly discovered evidence." INS v. Doherty, --- U.S. ----, ----, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992). There are three grounds upon which the Board may deny a motion to reopen: (1) failure to establish a prima facie case for the relief sought; (2) failure to introduce previously unavailable, material evidence; and (3) a determination that even if these requirements were met, the movant would not be entitled to the discretionary relief sought. Id. --- U.S. at ----, 112 S.Ct. at 725. This case turns on the first ground, where such a prima facie showing encompasses a showing of statutory eligibility for relief under section 212(c) of the Act.

Section 212(c) of the Act provides in pertinent part:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished residence of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section [which provides a list of excludable aliens]....

8 U.S.C.A. § 1182(c). On its face, this statute does not seem to apply to Katsis's case, as the facts here do not involve his leaving the country. Under case law, however, this discretionary relief may be extended to deportable aliens who have not exited the United States. Tapia-Acuna v. INS, 640 F.2d 223, 224-25 (9th Cir.1981); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976).

The term "lawfully admitted for permanent residence" is defined at section 101(a)(20) of the Act to mean "the status of having 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.A. § 1101(a)(20) (West 1970) (emphasis added). This is the statutory provision the Board has interpreted in order to rule on Katsis's motion to reopen proceedings to obtain discretionary relief under section 212(c).

Katsis fails to identify any express congressional pronouncements on the issue of what will be deemed to trigger a change in an alien's status as a lawful permanent resident under section 101(a)(20)...

To continue reading

Request your trial
42 cases
  • Hernandez-Rodriguez v. Pasquarell
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 24 Julio 1997
    ...Together with this Court, the Third and Fourth Circuits have approved the Board's interpretation of section 212(c). Katsis v. INS, 997 F.2d 1067 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994); Nwolise v. INS, 4 F.3d 306, 310-12 (4th Cir.1993), cert. denied,......
  • Sicard v. City of Sioux City
    • United States
    • U.S. District Court — Northern District of Iowa
    • 27 Noviembre 1996
    ...116 S.Ct. 699, 133 L.Ed.2d 656 (1996); First American Bank v. Resolution Trust Corp., 30 F.3d 644, 646 (5th Cir.1994); Katsis v. I.N.S., 997 F.2d 1067, 1069 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994); Kennedy v. Shalala, 995 F.2d 28, 30 (4th Cir.1993); ......
  • Morel v. I.N.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 26 Julio 1996
    ...Resources Defense Council, Inc., 467 U.S. 837, 843-45 & n. 11, 104 S.Ct. 2778, 2781-83 & n. 11, 81 L.Ed.2d 694 (1984); Katsis v. INS, 997 F.2d 1067, 1069-70 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994). We will uphold the agency's findings of fact to the ......
  • Yesil v. Reno
    • United States
    • U.S. District Court — Southern District of New York
    • 27 Febrero 1997
    ...that alien's eligibility for section 212(c) relief"), cert. denied, 510 U.S. 1075, 114 S.Ct. 888, 127 L.Ed.2d 82 (1994); Katsis v. INS, 997 F.2d 1067 (3d Cir. 1993) (holding, in case where alien had been a lawful permanent resident for more than seven years at time BIA issued its final orde......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT