Nicusor-Remus v. Sessions, 15-70588

• Decision Date: 08 August 2018
• Docket Number: No. 15-70588,15-70588
• Parties: Mihai NICUSOR-REMUS, aka Denis Philip Florance, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 895

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.

Argued and Submitted May 10, 2018—Seattle, Washington

Filed August 8, 2018

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-678.

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

TUNHEIM, Chief District Judge:

Petitioner Mihai Nicusor-Remus petitions for review of two orders of the Board of Immigration Appeals ("BIA") denying his motion to terminate asylum-only proceedings and his asylum application. Nicusor is subject to a 2002 removal order. We conclude that the 2002 removal order was executed when Nicusor briefly departed the United States in 2004. Because there is no final removal order over which we have jurisdiction, we dismiss Nicusor's petition for lack of jurisdiction.

I.

The Visa Waiver Program ("VWP") allows nationals of certain countries to enter the United States without a visa. 8 U.S.C. § 1187(a). Admission as a VWP entrant is subject to numerous restrictions, including waiver of any right "to contest, other than on the basis of an application for asylum, any action for removal of the alien." Id. § 1187(b)(2). The Department of Homeland Security ("DHS") determines whether a VWP entrant is removable "without referral of the alien to an immigration judge for a determination of deportability." 8 C.F.R. § 217.4(b)(1). VWP entrants are not entitled to full removal proceedings under Immigration and Nationality Act § 240, but they are entitled to asylum-only proceedings. Id. § 208.2(c).

In 2000, Nicusor – a Romanian national – entered the United States as a VWP entrant. In May 2002, Nicusor was arrested for credit-card fraud. The charges were dropped after he agreed to work as an FBI informant. In December 2002, Nicusor was again arrested for credit-card fraud. Immigration and Naturalization Services ("INS") (the predecessor of the immigration agencies now housed in DHS) detained Nicusor and 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. Nicusor contacted an FBI agent, who secured his release from INS custody. As part of a plea agreement, Nicusor agreed to testify against his co-conspirators in exchange for assistance resolving his immigration status. In December 2003, Nicusor was convicted of one count of conspiracy and sentenced to eight months of imprisonment.

Nicusor was released from jail sometime around March 2004. Shortly after his release, an FBI agent and an Immigration and Customs Enforcement ("ICE") agent drove Nicusor to the United States-Mexico Border. The agents escorted Nicusor across the border into Tijuana and then back into the United States. According to Nicusor's testimony before the Immigration Judge ("IJ"), the agents wanted to take Nicusor out of the country and bring him back legally so that he could testify against the criminal organization at trial. On March 4, 2004, Nicusor was issued an I-94 Departure Record, paroling him into the United States for "significant public interest" under 8 U.S.C. § 1182(d)(5)(A). Nicusor's parole later expired.

In February 2012, DHS took Nicusor into custody pursuant to the 2002 removal order. Nicusor requested asylum. DHS referred Nicusor to the IJ for asylum-only proceedings. The referral lists Nicusor's "Place and Manner of Arrival" as "Seattle WA; Visa Waiver Program" on April 2, 2000. A separate box lists his arrival category as "VWP/violator."

In two separate orders, the BIA denied Nicusor all requested relief. Nicusor petitions for review of these two orders.

II.

We have an obligation to review our jurisdiction sua sponte . Gupta v. Thai Airways Int'l, Ltd. , 487 F.3d 759, 763 (9th Cir. 2007). We have jurisdiction over "a final order of removal." 8 U.S.C. § 1252(a)(1). A removal order is an order by an administrative officer "determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation." Id. § 1101(a)(47)(A). "[A]ny alien ordered deported or removed ... who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective ... of the place to which he departed." Id. § 1101(g).

III.

We must first determine which agency actions constitute final removal orders for purposes of this Court's jurisdiction. The parties present two possible agency actions that may constitute final removal orders: (1) Nicusor's 2002 removal order and (2) the BIA's order denying Nicusor's asylum application in the asylum-only proceeding. We will conclude that the 2002 removal order is a final removal order for purposes of our jurisdiction because it is an order of an administrative officer "determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). We will conclude that the BIA's order denying Nicusor's asylum application in the asylum-only proceeding is not a final removal order unless the 2002 removal order remains in effect.

First, we must determine whether the 2002 removal order is a final removal order over which this Court may have jurisdiction. DHS determines whether a VWP entrant is removable "without referral of the alien to an immigration judge." 8 C.F.R. § 217.4(b)(1). "Removal [of a VWP entrant] by the district director is equivalent in all respects and has the same consequences as removal after proceedings [concluding that the alien is deportable or ordering deportation]." Id. § 217.4(b)(2). DHS's determination is an order of an administrative officer "determining whether an alien is deportable, concluding that the alien deportable or ordering deportation." See 8 U.S.C. § 1101(a)(47)(A). Accordingly, DHS's determination of a VWP entrant's removability constitutes an "order of removal." This Court has jurisdiction over Nicusor's 2002 removal order so long as it has not been executed.

Second, we must determine whether the BIA's order denying Nicusor's asylum application in the asylum-only proceeding is a final removal order over which this Court may have jurisdiction. When DHS determines that a VWP entrant is removable, the removal order "shall be effected without referral of the alien to an immigration judge for a determination of deportability," unless the VWP entrant applies for asylum. 8 C.F.R. § 217.4(b)(1). If the VWP entrant applies for asylum, DHS must place the VWP entrant in "asylum-only proceedings." See id. The asylum-only proceedings do not result in a removal order, although they may affect the ability of DHS to execute the outstanding removal order. Rather, the asylum-only proceedings behave like a stay of enforcement of the removal order. If the IJ grants the application for asylum or associated relief, DHS is prohibited from effecting the removal order unless the alien's asylum status is terminated. Id. § 1208.22.

Nicusor argues that the denial of his asylum application in the asylum-only proceedings is a final removal order. This argument conflates the "removal order" (i.e., DHS's determination that a VWP entrant is removable) with the action that makes the removal order "final" (i.e., the IJ's denial of the VWP entrant's only forms of relief). In Bao Tai Nian v. Holder , this Court held that "the denial of [an alien's] petition for asylum and other relief in ‘asylum-only’ proceedings is the ‘functional equivalent’ of a final order of removal" for purposes of determining jurisdiction. 683 F.3d 1227, 1230 (9th Cir. 2012). In a later case, this Court explained that this conclusion "was motivated, at least in part, to ensure the availability of such review." Padilla-Ramirez v. Bible , 882 F.3d 826, 835 (9th Cir. 2017) (citing Kanacevic v. I.N.S. , 448 F.3d 129, 135 (2d Cir. 2006) ).

Bao Tai Nian and its progeny stand for the proposition that the denial of an asylum application in asylum-only proceedings "finalizes" DHS's removal order of a VWP entrant because the VWP entrant is entitled to no other forms of relief. 683 F.3d at 1230. However, Bao Tai Nian assumes that DHS has actually made a determination that the VWP entrant is removable and has properly referred him or her to asylum-only proceedings. DHS should not refer a VWP entrant to asylum-only proceedings unless it has made the initial determination that the VWP entrant is removable. See 8 C.F.R. § 217.4(b)(1). It is DHS's initial determination that constitutes the removal order over which this Court may have jurisdiction.

The issue in Nicusor's case is whether DHS made an initial determination of his removability. The 2002 removal order is the only determination of Nicusor's removability. When ICE apprehended Nicusor in 2012, it did not make an additional determination of removability. If the 2002 removal order was executed when Nicusor left the country in 2004, then Nicusor is not subject to a final removal order, and DHS erroneously referred Nicusor to asylum-only proceedings by failing to make the initial determination of his removability.

IV.

We must next decide whether the 2002 removal order was executed when Nicusor left the United States in 2004. The Attorney General does not dispute that Nicusor left the United States in 2004. However, the Attorney General argues that Nicusor's "physical departure"...