Lolong v. Gonzales

• Decision Date: 07 May 2007
• Docket Number: No. 03-72384.,03-72384.
• Citation: 484 F.3d 1173
• Parties: Marjorie Konda LOLONG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

484 F.3d 1173

Marjorie Konda LOLONG, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-72384.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2006.

Filed May 7, 2007.

Robert B. Jobe, Hilari Allred, Law Office of Robert B. Jobe, San Francisco, CA, for petitioner Marjorie Lolong.

Jonathan F. Cohn & Isaac R. Campbell, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-427-355.

Before MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, PAMELA ANN RYMER, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M.

MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

BYBEE, Circuit Judge.

Marjorie Konda Lolong petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying her application for asylum and granting her voluntary departure. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), we held that we lack jurisdiction to review the BIA's decisions in such cases because the BIA lacks the authority to issue final orders of departure, and the Immigration and Naturalization Act ("INA") conditions our jurisdiction on the existence of such an order. Until recently, a petitioner in Lolong's position could still seek habeas relief in district court, but in the REAL ID Act of 2005, Congress eliminated this form of relief in immigration cases. See 8 U.S.C. § 1252(a)(5). Together with our prior decisions, this statutory change leaves petitioners in Lolong's position with no opportunity to obtain judicial review of the BIA's disposition of their cases. We reheard this case en banc to revisit our prior jurisprudence because this lack of judicial review raises serious constitutional concerns. Having decided that our prior interpretation of the BIA's power under the INA was overly narrow, we overrule Molina-Camacho and determine that we do have jurisdiction to review the BIA's decision in such cases. We further conclude that substantial evidence supports the BIA's denial of Lolong's asylum claim. Accordingly, we deny the petition for review.

I

Marjorie Lolong is an Indonesian woman of ethnic Chinese descent. She is also a Christian. Lolong first entered the United States as a student in 1990. In May 1998, when she was still a student in this country, Indonesia experienced the worst anti-Chinese rioting in its history. She applied for asylum in December 1998, after learning that one of her friends had been raped and her uncle had been severely beaten during the violence. During her removal proceedings, Lolong conceded removability, and the Immigration Judge ("IJ") determined that "removability has been established by clear and convincing evidence." However, in November 2000, the IJ held that Lolong was eligible for asylum, finding her testimony fully credible and her fear of future persecution to be both subjectively genuine and objectively reasonable. The Immigration and Naturalization Service ("INS") appealed and, in a divided opinion, the BIA concluded that Lolong could not establish that her fear of future persecution in Indonesia was objectively reasonable because there was evidence that the Indonesian government had taken steps to bring militant Islamic groups — which were largely responsible for the outbreaks of religious and ethnic violence — under control. Consequently, the BIA sustained the appeal, vacated the IJ's decision, and granted Lolong voluntary departure. Lolong then petitioned this court for review. A panel of our court granted Lolong's petition. 400 F.3d 1215 (9th Cir.2005). We vacated that decision, 452 F.3d 1027 (9th Cir.2006), and heard oral argument.¹

II

As an initial matter, we must address the question of our jurisdiction to review Lolong's petition. In two prior decisions, we have narrowly construed the BIA's authority under the INA both to enter an order of removal in the first instance, and, as is the case here, to reinstate a prior order of removal issued by the IJ. In the first of these decisions, Noriega-Lopez v. Ashcroft, we noted that the BIA lacks statutory authority to enter orders of removal and held that any attempt by the BIA to do so was a "legal nullity." 335 F.3d 874, 883-84 (9th Cir.2003) (internal quotation marks omitted). Because our jurisdiction is limited to the review of final orders of removal, 8 U.S.C. § 1252(a), we held that, where the BIA issues an order of removal in the first instance, there is no valid final order of removal and consequently no jurisdiction in this court to review that legal nullity, Noriega-Lopez, 335 F.3d at 884-85. We concluded in that case that the petitioner had properly sought collateral review of the BIA's order of removal via a habeas petition filed in the district court and that we had jurisdiction to review the district court's disposition of that petition. Id. at 880-81.

In Noriega-Lopez, we expressly reserved the question of this court's jurisdiction over petitions for review in cases where the IJ has determined "that an alien is removable ... but grants relief from removal, and the BIA then rejects the grant of relief." Id. at 884 n. 10. In Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.2004), however, we answered that question in the negative. In that case, as here, the alien conceded removability, but the IJ granted his request for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). Id. at 938-39. The INS appealed, and the BIA reversed, holding that Molina-Camacho had not demonstrated that removal would cause the "exceptional and extremely unusual hardship" to his family that the INA requires for cancellation of removal. Id. at 939. The BIA then ordered him removed to Mexico. Id.

Molina-Camacho petitioned for review by this court, but, extending the principles articulated in Noriega-Lopez, we held that the BIA's removal order was ultra vires and that we therefore lacked jurisdiction. Id. at 939-42. We noted that the INA extends authority to enter removal orders only to special inquiry officers and not to the BIA. Id. at 940. Moreover, we noted that the BIA's role under the governing regulations is limited to "appellate review of immigration judges' decisions and other administrative adjudications." Id. (internal quotations omitted). Finally, we rejected the government's argument that the finding of removability before the IJ was equivalent to an order of removability because this argument "conflates the BIA's uncontested substantive power to reverse a finding of removability or eligibility for cancellation of removal on appeal with the procedural power to issue the order of removal that results from such a reversal." Id. at 941. Instead of simply dismissing the petition, however, we chose to construe it as a petition for habeas relief under 28 U.S.C. § 2241 and transferred it to the district court. Id. at 942.

The procedural posture of Lolong's petition is essentially identical to that in Molina-Camacho and presents the same jurisdictional conundrum. Lolong conceded removability before the IJ, and, based on this concession, the IJ held that Lolong was removable but granted her application for asylum. The BIA reversed, but rather than remanding Lolong's case to the IJ for entry of an order of removal, the BIA itself granted her voluntary departure.

Despite this similarity to Molina-Camacho, however, we no longer have the option of construing the petition for review as a request for habeas relief and transferring the matter to the district court. In the REAL ID Act of 2005, Congress eliminated collateral review of orders of removal leaving direct petition to this court the sole avenue for review of the BIA's rulings. 8 U.S.C. § 1252(a)(5) (stating that "a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act"). Thus, the REAL ID Act and our decision in Molina-Camacho together operate to deprive Lolong of any avenue to seek review of the BIA's decision, leaving her in legal limbo.

This limbo — in which the petitioner is subject to a void order of removal but has no judicial remedy — may raise serious constitutional concerns because the Suspension Clause "unquestionably" requires "some judicial intervention in deportation cases." INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotations omitted); see U.S. Const. art. I, § 9, cl. 2. Before we conclude that Congress intended to eliminate all possible relief in the REAL ID Act and thereby "give rise to [these] substantial constitutional questions," St. Cyr, 533 U.S. at 300, 121 S.Ct. 2271, it is prudent for us first to review our own precedent to confirm that we have correctly interpreted the INA and the authority that statute grants to the BIA. Such a review, coupled with a close examination of the INA, now convinces us that nothing in that statute mandates the result we reached in Molina-Camacho.

The IJ's grant of relief, whether in the form of asylum or withholding of removal on other grounds, necessarily requires the IJ to have already determined that the alien is deportable. Under the INA, this determination by the IJ constitutes an "order of deportation." 8 U.S.C. § 1101(a)(47) (defining an "order of deportation" to include both an "order ... concluding that the alien is deportable" and one "ordering deportation").² Thus, where the BIA reverses an IJ's grant of relief that, by definition, follows an initial determination by the IJ that the alien is in fact removable, an order of deportation has already been properly entered by the IJ. In such cases, therefore, the BIA does not enter an order of deportation in the first instance when it orders the alien removed. Rather,...