Nicusor-Remus v. Sessions, 080818 FED9, 15-70588

Docket Nº:15-70588
Opinion Judge:TUNHEIM, CHIEF DISTRICT JUDGE
Party Name:Mihai Nicusor-Remus, AKA Denis Philip Florance, Petitioner, v. Jefferson B. Sessions, III, Attorney General of the United States, Respondent.
Attorney:Rosario Daza (argued) and Lori K. Walls, Washington Immigration Defense Group, Seattle, Washington; for Petitioner. Matthew Allan Spurlock (argued), Trial Attorney; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington...
Judge Panel:Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and John R. Tunheim, Chief District Judge.
Case Date:August 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Mihai Nicusor-Remus, AKA Denis Philip Florance, Petitioner,

v.

Jefferson B. Sessions, III, Attorney General of the United States, Respondent.

No. 15-70588

United States Court of Appeals, Ninth Circuit

August 8, 2018

Argued and Submitted May 10, 2018 Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-441-678

Rosario Daza (argued) and Lori K. Walls, Washington Immigration Defense Group, Seattle, Washington; for Petitioner.

Matthew Allan Spurlock (argued), Trial Attorney; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and John R. Tunheim, Chief District Judge. [*]

SUMMARY

[**]

Immigration

The panel dismissed for lack of jurisdiction Mihai Nicusor-Remus's petition for review of the Board of Immigration Appeals' decisions denying his motion to terminate asylum-only proceedings and denying his application for asylum.

Nicusor entered the United States in 2000 pursuant to the Visa Waiver Program ("VWP"). After an arrest for credit card fraud in 2002, the Immigration and Naturalization Service issued a Notice of Intent to Deport, which concluded that Nicusor was removable and had waived his right to contest his removability as a VWP entrant. As part of his plea agreement in the credit card prosecution, Nicusor agreed to testify against his co-conspirators, in exchange for help resolving his immigration status. In 2004, an FBI agent and Immigration and Customs Enforcement agent escorted Nicusor across the border into Mexico, whereupon he was immediately issued an I-94 Departure Record, paroling him into the United States for "significant public interest," so he could testify against his co-conspirators. In 2012, after Nicusor's parole had expired, the Department of Homeland Security took Nicusor into custody pursuant to the 2002 removal order, after which Nicusor requested asylum, was placed in asylum-only proceedings, and denied asylum relief. Nicusor now seeks review of the denial of his motion to terminate asylum-only proceedings and the denial of asylum relief.

The panel held that there was no final order of removal over which it had jurisdiction. The panel considered two possible decisions that could confer jurisdiction: (1)

Nicusor's 2002 removal order and (2) the Board's order denying Nicusor's asylum application in the asylum-only proceeding.

The panel held that the 2002 Notice of Intent to Deport constituted a final order of removal for purposes of determining jurisdiction. The panel explained that the 2002 order could form the basis for jurisdiction over the Board's orders denying the motion to terminate asylum-only proceedings and denying asylum relief only if DHS properly placed Nicusor in asylum-only proceedings. The panel further explained that asylum-only proceedings were appropriate only if the 2002 order had not been executed.

The panel rejected Nicusor's argument that the denial of his asylum application in asylum-only proceedings constituted a final order of removal. The panel explained that although asylum-only proceedings may affect the ability of DHS to execute the outstanding removal order, such proceedings act only to stay enforcement of the original removal order. The panel explained that the denial of relief in asylum-only proceedings is not itself a final order of removal, but rather is relevant to the finality of the DHS's removal order of a VWP entrant.

The panel held that the 2002 order was executed when Nicusor departed in 2004. Because the 2002 order had already been executed when Nicusor entered the United States in 2004, he was no longer an applicant under the VWP, but an applicant for admission. The panel concluded that DHS therefore erred in placing Nicusor in asylum-only proceedings. The panel further concluded that because DHS failed to make...

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