Manzano-Garcia v. Gonzales

• Decision Date: 15 June 2005
• Docket Number: No. 03-60745.,03-60745.
• Parties: Eliseo MANZANO-GARCIA; Reina Manzano-Olea; Antonio Abraham Manzano-Olea, Petitioners, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.3d 462

Eliseo MANZANO-GARCIA; Reina Manzano-Olea; Antonio Abraham Manzano-Olea, Petitioners, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 03-60745.

United States Court of Appeals, Fifth Circuit.

June 15, 2005.

Jose W. Vega, Law Office of Jose W. Vega, Houston, TX, for Petitioners.

Elizabeth J. Stevens, Thomas Ward Hussey, Director, Linda Susan Wendtland, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of a Final Order of the Board of Immigration Appeals.

Before JOLLY, JONES and DeMOSS, Circuit Judges.

PER CURIAM:

Eliseo Manzano-Garcia, his wife, Reina Manzano-Olea, and their minor child, Antonio Abraham Manzano-Olea (together, the "Manzanos") petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to reopen removal proceedings. For the following reasons, we DENY the Manzanos' petition for review.

BACKGROUND

Mr. Manzano, a native and citizen of Mexico, entered the United States on or about July 28, 1985, without being admitted or paroled by an immigration officer. Mrs. Manzano and their two sons,¹ also natives and citizens of Mexico, entered the country in April and August 1989, without being admitted or paroled by an immigration officer. In 1998 the four family members were charged with being subject to removal under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States without being admitted or paroled.

The Manzanos were scheduled for separate hearings in August 1998; the hearings were continued so the proceedings could be consolidated. A hearing was held on September 17, 1998, and the Manzanos, through counsel, admitted the allegations of fact, conceded removal, and designated Mexico as their country of removal. The Manzanos sought a 30-day continuance to explore whether they were eligible for cancellation of removal.

On October 19, 1998, counsel advised that Mr. Manzano was not eligible for cancellation of removal, but that he had filed, through separate counsel, a labor certification application, which was pending with the Department of Labor. The parties agreed to a two-week continuance to verify the filing of the labor application. Counsel alternatively sought a period of 120 days to make a voluntary departure.

On November 12, 1998, Mr. Manzano presented the immigration judge ("IJ") with a receipt for the labor certification application, which had been filed on November 17, 1997. Mr. Manzano requested another continuance, this one for six months, to obtain approval of the certification and to file and obtain approval of an immigrant visa petition. The government opposed this request. During the discussion before the IJ, it was revealed that Mr. Manzano had been voluntarily returned to Mexico in 1985 and 1995. The IJ indicated he was not pleased with the delays or the voluntary returns. However, the IJ stated that in the interest of the minor child, he would allow a three-month continuance to complete the labor certification process. On February 11, 1999, the Manzanos appeared and received another continuance of 90 days because approval of the labor certification application remained pending.

On May 17, 1999, a hearing commenced, and counsel for the Manzanos stated that the labor certification had been approved but that the immigrant visa petition had not been filed. Counsel stated that the Manzanos' other counsel had requested additional information and a filing fee from Mr. Manzano in order to file the I-140 immigrant visa petition, but Mr. Manzano contended he never received that request. Counsel reported that earlier that morning, Mr. Manzano had gone to his other counsel's office and signed the necessary paperwork to file the visa petition. However, counsel indicated the I-140 form still needed to be filed.

The IJ recessed the proceeding to allow counsel to obtain documents from the Manzanos' other counsel and to determine when the form would be filed. Counsel provided copies of the labor certification, which reflected it had been approved on February 1, 1999, and sought another continuance to file and obtain the I-140 petition approval. The government objected, arguing that the labor certification had been approved on February 1, 1999, and Mr. Manzano had taken no action to file the I-140 form during the ensuing three-month period. After further discussion, Mr. Manzano submitted letters addressed to him from his other counsel, dated March 18, April 19, and May 13, 1999, requesting that Mr. Manzano pay a filing fee and submit a signed G-28 form. Mr. Manzano was apparently in possession of the letters but had not provided them to his counsel prior to the hearing. The Manzanos withdrew their request for voluntary departure.

The IJ noted that the labor certificate had been approved on February 1, 1999, and the immigrant visa petition had not been filed due to Mr. Manzano's failure to provide the requested documents and fees. The IJ also relied on the fact that Mr. Manzano did not produce the letters from his counsel requesting the information and fees until the IJ indicated he would deny the motion for continuance. The IJ determined that the Manzanos had shown no justification for the lack of action during the three-and-one-half months since the labor certification was approved and noted that Mr. Manzano still had not filed an immigrant visa petition or submitted an application for an adjustment in status. The IJ thus denied the motion for continuance for lack of good cause. Because the Manzanos had abandoned their request for a voluntary departure and had no other applications for relief pending, the IJ ordered them removed to Mexico.

The Manzanos filed a timely notice of appeal from the IJ's decision to the BIA, arguing that the IJ abused his discretion in denying their motion for continuance and ordering their removal without allowing Mr. Manzano to complete the labor certification process. The Manzanos further argued that Mr. Manzano's petition for alien labor certification had been granted after the IJ ordered his removal and that, if the case was remanded, Mr. Manzano could have his status adjusted to being a lawful permanent resident. The government opposed this appeal, arguing that the IJ had properly denied the motion for continuance because the Manzanos had not shown good cause for their delay in processing the adjustment in status application.

On December 9, 2002, a single BIA member affirmed the IJ's decision without opinion. The Manzanos did not file a petition for review from that decision. On January 9, 2003, the Manzanos filed a timely motion to reopen to allow Mr. Manzano to apply for an adjustment of status and to stay removal proceedings. Mr. Manzano argued he was prima facie eligible for an adjustment of status and attached an I-485 form to that effect, which he had filed on December 17, 2002. The government opposed the motion, arguing that Mr. Manzano could have presented this evidence during the former proceeding.

The BIA denied the motion to reopen, noting that Mr. Manzano's visa petition had not been approved prior to the IJ's decision because Mr. Manzano had not provided his counsel with the requested signed G-28 form. The BIA also considered that the Manzanos had been granted three prior continuances to pursue the labor certification, two of which were for three-month periods. The BIA noted the third continuance was granted after the labor certification had been approved, and during the three subsequent months, Mr. Manzano failed to facilitate the filing of the visa petition by signing and submitting the G-28 form. The BIA found that "although [Mr. Manzano] was not previously eligible to apply for adjustment of status, the cause is due in part to his contribution to the delay in the filing of the visa petition." The Manzanos timely filed this petition for review.

DISCUSSION

I. Whether this Court has jurisdiction to review motions to reopen.

Jurisdiction under INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii).

To begin, the government argues that this Court lacks jurisdiction to review the BIA's denial of the motion to reopen because, under INA § 242(a)(2)(B)(ii), now codified at 8 U.S.C. § 1252(a)(2)(B)(ii),² review of discretionary decisions is prohibited. The government contends that although the statute allowing motions to reopen does not per se state that a decision regarding a motion to reopen is within the sole or unreviewable discretion of the Attorney General, 8 U.S.C. § 1229a(c)(6), such determinations are universally recognized as inherently discretionary. See, e.g., INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (noting Attorney General's broad discretion to deny motions to reopen). The Manzanos contend this Court retains jurisdiction under § 1252(a) over an appeal from a final order of a denial of the BIA of a motion to reopen.

This Court recently undertook to resolve this precise issue — "the degree to which 8 U.S.C. § 1252(a)(2)(B)(ii) ... precludes judicial review of motions to reopen immigration proceedings." Zhao v. Gonzales, 404 F.3d 295, 301-02 (5th Cir.2005). There, the Court noted that it is a federal regulation, 8 C.F.R. § 1003.23(b)(3),³ and not any statute, which furnishes the amount of discretion that the Attorney General enjoys when considering motions to reopen. Zhao, 404 F.3d at 303. The Court continued on to discuss how due to this regulatory-provided discretion, § 1252(a)(2)(B)(ii) could mistakenly be read:

as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority specified in the statute. The statutory language is uncharacteristically pellucid on this score; it does not...