Mendis v. Filip

• Decision Date: 30 January 2009
• Docket Number: Docket No. 07-5768-ag.
• Citation: 554 F.3d 335
• Parties: Balapuwaduge Shantha MENDIS, Petitioner, v. Mark FILIP, Acting U.S. Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

554 F.3d 335

Balapuwaduge Shantha MENDIS, Petitioner, v. Mark FILIP, Acting U.S. Attorney General,^* Respondent.

Docket No. 07-5768-ag.

United States Court of Appeals, Second Circuit.

Argued: October 2, 2008.

Decided: January 30, 2009.

Benjamin B. Xue, Law Offices of Benjamin B. Xue, P.C., New York, NY, for Petitioner.

Kelly J. Walls, Office of Immigration Litigation, United States Department of Justice (Jeffrey S. Bucholtz, Acting Assistant Attorney General; James E. Grimes, Senior Litigation Counsel, on the brief), Washington, DC, for Respondent.

Before: JACOBS, Chief Judge, MINER and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Petitioner Balapuwaduge Shantha Mendis petitions for review of the November 28, 2007 decision and order of the Board of Immigration Appeals ("BIA"), dismissing his appeal of the April 5, 2006 decision of Immigration Judge ("IJ") Paul A. DeFonzo, ordering Mendis removed to the United Kingdom. Mendis argues that he cannot be removed to the United Kingdom under 8 U.S.C. § 1231(b)(2), because he was in the United Kingdom for only a few hours during a stop-over en route to the United States and has no legal right to live or travel there. We conclude that the BIA's decision does not permit adequate appellate review because it does not sufficiently explain why it designated the United Kingdom as a country of removal. We therefore remand to the BIA so that it may issue a precedential opinion that (1) identifies the statutory provision(s) it relies upon in designating the United Kingdom as a country of removal, and (2) explains why the statutory provision(s) support Mendis's removal to the United Kingdom. Accordingly, we grant Mendis's petition for review, vacate the order of the BIA, and remand for further proceedings consistent with this opinion.

BACKGROUND

A. Mendis's Removal Proceedings

In July 2002, Mendis, a native and citizen of Sri Lanka, entered the United States on a tourist visa. Mendis remained in the United States beyond the expiration of his visa, and on July 31, 2004, the Department of Homeland Security charged him as removable from the United States under 8 U.S.C. § 1227(a)(1)(B). Mendis appeared before an IJ in September 2004, where he conceded removability as charged. Mendis sought relief from removal by applying for (1) asylum; (2) withholding of removal under 8 U.S.C. § 1231(b)(3); and (3) withholding of removal under the Convention Against Torture ("CAT"). In the alternative, Mendis sought voluntary departure. In support of his application, Mendis alleged that he had been arrested, detained, and beaten by the Sri Lankan military because the army believed that he had supplied banned items to the rebel Liberation Tigers of Tamil Eelam. He also claimed that an army officer advised him to go into hiding.

At two separate master calendar hearings in September and November 2004, Mendis declined to designate a removal country under § 1231(b)(2)(A). The IJ designated Sri Lanka, Mendis's country of citizenship, as a country of removal at both hearings. At an individual merits hearings in April 2006, Mendis testified in support of his application for relief from removal, detailing the persecution he had faced in Sri Lanka. During this hearing, Mendis testified that he traveled from Sri Lanka to the United States, passing through Qatar and London en route. Mendis was not asked for any additional details regarding his time in London, and there is no indication from the record that Mendis ever went through British immigration and customs or left the airport.

At the end of the April 2006 hearing, the IJ (1) pretermitted Mendis's asylum application by finding that Mendis had submitted his application after the one-year statutory deadline and that he had failed to present changed or extraordinary circumstances to justify the delay in filing; (2) granted Mendis's application for withholding of removal to Sri Lanka, finding that there was a clear probability that he would be subject to persecution should he be compelled to return; (3) denied Mendis's application for CAT relief, finding that the mistreatment he faced in Sri Lanka did not rise to the level of torture; (4) denied Mendis's request for voluntary departure; and (5) ordered Mendis removed to the United Kingdom, "as that is the country of the respondent's last transit to the United States."

B. BIA Appeal

Mendis timely appealed the IJ's order of removal to the United Kingdom to the BIA.¹ Mendis argued that the United Kingdom was not a proper country of removal because he was there for only a few hours in the airport while awaiting a connecting flight and had no legal right to travel or reside there. He further argued that the IJ should not have ordered him removed to the United Kingdom absent prior assurances that he would be accepted into the United Kingdom, or at least not summarily deported therefrom to Sri Lanka. Finally, Mendis asserted that the IJ erred in ordering him removed to the United Kingdom because the IJ had never previously designated the United Kingdom as a country for removal.

On November 28, 2007, the BIA dismissed Mendis's appeal in a one-page unpublished and non-precedential per curiam opinion. With respect to Mendis's argument that he should not have been ordered removed to the United Kingdom, the BIA held that "since the respondent declined to designate a country of removal, and the Immigration Judge granted him withholding of removal to Sri Lanka, the United Kingdom was properly chosen to be a count[r]y of removal pursuant to ... 8 U.S.C. § 1231(b)(2)(E)(i) [country from which alien was admitted to the United States was an additional removal country]" (first alteration added).² The sole basis for that conclusion was the BIA's observation that Mendis "testified that he stopped over in London, United Kingdom, en route to the Untied States." With respect to Mendis's argument that the IJ had failed to designate the United Kingdom as a country of removal, the BIA found the failure to be harmless error because "[t]he Immigration Judge's order removing the respondent to the United Kingdom in effect also designated the United Kingdom as a country of removal."

Mendis timely appealed the BIA decision, arguing that the BIA erred in dismissing his appeal because the IJ lacked statutory authority to order him removed to the United Kingdom. At oral argument and in its brief, the government argued that the IJ had authority to designate the United Kingdom as a country of removal under either § 1231(b)(2)(E)(i) (designating the "country from which the alien was admitted to the United States") or § 1231(b)(2)(E)(ii) (designating the "country in which is located the foreign port from which the alien left for the United States").

DISCUSSION

A. Jurisdiction and Standard of Review

Mendis filed a timely petition with this Court for review of the BIA's dismissal of his appeal. Accordingly, this Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(5). We consider both the BIA and IJ decisions with respect to Mendis's argument that the United Kingdom was not an appropriate country of removal. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) ("When the BIA does not expressly adopt the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness." (internal quotation marks omitted)). We review the agency's factual findings under the substantial evidence standard, see 8 U.S.C. § 1252(b)(4)(B); Pinto-Montoya v. Mukasey, 540 F.3d 126, 129 (2d Cir.2008), and "review de novo questions of law and the application of law to fact," Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008). Although the BIA's interpretation of immigration statutes is entitled to Chevron deference, INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), the BIA's non-precedential unpublished decision in Mendis's case is not entitled to Chevron deference, see Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir.2007) (holding that a non-precedential decision by a single member of the BIA was not entitled to Chevron deference because it was not intended to carry the force of law); Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d. Cir.2007) (noting that Chevron deference is not warranted where "the challenged BIA decision is unpublished").³

B. Statutory Background

Section 1231 of the Immigration and Nationality Act ("INA") provides four consecutive "commands" for designating an alien's country of removal. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). First, "[a]n alien shall be removed to the country of his choice ..., unless one of the conditions eliminating that command is satisfied." Id. Second, "otherwise [the alien] shall be removed to the country of which he is a citizen ..., unless one of the conditions eliminating that command is satisfied." Id. Third, "otherwise [the alien] shall be removed to one of the countries with which he has a lesser connection." Id. Countries of lesser connection include "[t]he country from which the alien was admitted to the United States," 8 U.S.C. § 1231(b)(2)(E)(i), and "[t]he country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States," id. § 1231(b)(2)(E)(ii); Jama, 543 U.S. at 341, 125 S.Ct. 694.⁴ Finally, if removing the alien to one of the countries with which he has a lesser connection is "`impracticable, inadvisable, or impossible,' [the alien] shall be removed to `another country whose government will accept the alien into that country.'" Jama, 543 U.S. at 341, 125 S.Ct. 694 (quoting 8 U.S.C. § 1231(b)(2)(E)(vii)).

The INA provides aliens with various forms of relief from removal. In particular, "the...