Madrigal v. Holder

• Decision Date: 09 July 2009
• Docket Number: No. 08-3132.,08-3132.
• Citation: 572 F.3d 239
• Parties: Maria Isabel MADRIGAL, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

572 F.3d 239

Maria Isabel MADRIGAL, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 08-3132.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2009.

Decided and Filed: July 9, 2009.

ARGUED: Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Patrick J. Glen, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Patrick J. Glen, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.

DAUGHTREY, J., delivered the opinion of the court, in which ROGERS and KETHLEDGE, JJ., joined. KETHLEDGE, J. (pp. 245-46), delivered a separate concurring opinion.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

The petitioner, Maria Isabel Madrigal, seeks review of an order of the Board of Immigration Appeals withdrawing her appeal from the immigration judge's denial of her motion to reopen removal proceedings. The Board found that because the petitioner had departed from the United States while she was subject to an order of removal and while her appeal was pending, the appeal was effectively withdrawn pursuant to 8 C.F.R. § 1003.4. Noting that she was removed by the government and not of her own volition, Madrigal claims that the withdrawal order was improperly entered. We agree and conclude that the matter should be remanded to the Board for further proceedings on the merits of the denial of the petitioner's motion to reopen.

FACTUAL AND PROCEDURAL BACKGROUND

The petitioner is a native and citizen of Mexico who last entered the United States without inspection in 1997. Her application for adjustment of status was denied in 2004, and she was subsequently issued a Notice to Appear, charging under 8 U.S.C. § 1182(a)(6)(A)(i) that she was subject to removal as an alien present in the United States without having been admitted or paroled. The petitioner's removal hearing was held in February 2007. However, she did not appear, and the immigration judge issued an order of removal in absentia, based on the charges contained in the notice.

After the hearing, the petitioner filed a motion to reopen the proceedings in the immigration court, claiming that she had not received notice of the February 2007 hearing. The immigration judge denied the motion, observing that the notice had been sent to the proper address,¹ that it had not been returned, and that the petitioner lacked supporting evidence of non-receipt.

The petitioner then filed a timely appeal with the Board of Immigration Appeals in April 2007. On August 24, 2007, averring that she had been ordered to depart by September 10, 2007, the petitioner filed a motion to expedite and a motion to stay removal pending disposition of her appeal. Before the Board ruled on either motion, the Department of Homeland Security executed the outstanding removal order, and she was deported to Mexico.

In January 2008, the Board held that the petitioner's appeal of the immigration judge's decision denying her motion to reopen had been automatically withdrawn and, therefore, dismissed the appeal pursuant to 8 C.F.R. § 1003.4. That regulation provides:

Departure from the United States of a person who is the subject of deportation proceedings subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

The Board's determination that the petitioner's departure from the United States constituted a withdrawal of her appeal made the immigration judge's decision final.

The petitioner then filed a timely petition for review of the Board's decision in this court, where she was met with the government's motion to dismiss for lack of jurisdiction. In its motion, the government argued both that Madrigal is not seeking review of a final order under 8 U.S.C. § 1252(a)(1) and that she has failed to exhaust her administrative remedies.

DISCUSSION

A. Jurisdiction

As the government correctly notes, our jurisdiction is limited to the review of final orders of removal, although our review is not literally confined to examining such orders. Analyzing a previous version of the Immigration and Nationality Act, we observed that an "order of deportation includes more than just the piece of paper authorizing the government to take custody of the alien and transport him beyond our frontiers." Perkovic v. INS, 33 F.3d 615, 618 (6th Cir.1994). Like many courts that have relied upon an implicit jurisdictional grant of authority under 8 U.S.C. § 1252(a)(1) to review Board orders denying motions to reopen removal proceedings, see, e.g., Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005); Patel v. United States, 334 F.3d 1259, 1261 (11th Cir.2003), we have also asserted jurisdiction over denials of a motion to reopen. See, e.g., Aoun v. INS, 342 F.3d 503 (6th Cir.2003).

Neither the immigration judge's removal order nor a Board decision on the petitioner's motion to reopen is presently before the court.² Instead, the sole decision at issue is the Board's order automatically withdrawing the petitioner's administrative appeal due to her departure from the United States. The government concedes that we retain the authority to review the Board's denial of a motion to reopen but contends that the withdrawal order was not such an order, because it did not deny the petitioner's motion on the merits. However, by cutting off the petitioner's opportunity for a substantive appellate determination, the withdrawal order gave final effect to the immigration judge's order denying the petitioner's request to reopen her case. Hence, even though the order before us is not technically a denial of the petitioner's motion to reopen, it is the logical and functional equivalent of such an order. Accordingly, we treat the Board's withdrawal order no differently than if it were a denial of a motion to reopen.

In this context, we find unpersuasive the argument that an order issued on procedural grounds is so distinctive from a decision on the merits as to deprive this court of jurisdiction. In our view, the government argues for a distinction without a difference. Although the Board's withdrawal order was indeed a procedural ruling relating to the petitioner's standing to appeal and had no effect on the substance of the petitioner's appeal, it nevertheless rendered the petitioner removable as a matter of law. As we have previously observed, "it would seem very odd indeed for a court to lack the ability to review a procedural decision that is determinative of the merits of a case, particularly when the court has jurisdiction to review the merits of that case absent a conclusive procedural ruling." Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir.2006). In a case such as this, in which we would undoubtedly have jurisdiction over the Board's substantive denial of a motion to reopen, it would "seem very odd indeed" that this procedural order issued by the Board could so easily evade judicial review. Accordingly, this particular order is reviewable under section 1252.

B. Exhaustion of Remedies

As a prerequisite to seeking judicial review of an order of removal, a petitioner must have "exhausted all administrative remedies available to [her] as of right." 8 U.S.C. § 1252(d)(1); see also Suassuna v. INS, 342 F.3d 578, 583 (6th Cir.2003). If there is a statutory requirement that a plaintiff "exhaust his or her administrative remedies before seeking judicial review, federal courts do not have subject matter jurisdiction to review the plaintiff's claim until the plaintiff has exhausted his or her administrative remedies." See Bangura v. Hansen, 434 F.3d 487, 493 (6th Cir.2006).

In this case, the government claims that the petitioner failed to exhaust her administrative remedies because she withdrew her appeal prior to receiving a final determination. However, this contention ignores the fact that the Board rendered a decision on the petitioner's appeal—concluding that it had been withdrawn automatically by operation of section 1003.4— and that it was this decision, rather than any affirmative act by the petitioner, that gave final effect to the underlying removal order. After the Board issued its withdrawal order, the petitioner was precluded from seeking any further administrative relief and, thus, has effectively exhausted all available remedies.

Moreover, to find that we lacked jurisdiction due to the petitioner's failure to exhaust would not be in keeping with the purpose of section 1252(d)(1)'s exhaustion requirement. As we have noted, the purpose of that provision is:

(1) to ensure that the [DHS], as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims; (2) to avoid premature interference with the agency's processes; and (3) to allow the BIA to compile a record which is adequate for judicial review.

Liti v. Gonzales, 411 F.3d 631, 642 (6th Cir.2005). Clearly, none of these concerns is implicated by our exercise of jurisdiction in this case. Here, the petitioner sought administrative relief to the farthest extent possible, and the Board had a full opportunity to consider her appeal on the merits but elected not to do so. There is, simply, no just reason why we should not exercise jurisdiction over this appeal.

C. Propriety of the Board's Withdrawal Order

We review the Board's legal conclusions de novo. See Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.2007). However, we defer to the Board's reasonable interpretations of the Immigration and Nationality Act and accompanying regulations. See id. Accordingly, the Board's interpretation of the statute and regulations will be upheld unless ...