Orquera v. Ashcroft

• Decision Date: 01 December 2003
• Docket Number: No. 02-1327.,02-1327.
• Citation: 357 F.3d 413
• Parties: Ariel Osvalod ORQUERA; Aldo Agustin Orquera; Gladis Mabel Orquera; Ariadna Brenda Orquera, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

357 F.3d 413

Ariel Osvalod ORQUERA; Aldo Agustin Orquera; Gladis Mabel Orquera; Ariadna Brenda Orquera, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-1327.

United States Court of Appeals, Fourth Circuit.

December 1, 2003.

Argued: September 23, 2003.

Decided: December 1, 2003.

ARGUED: Rafael A. Geigel-Vassallo, Salgado & Associates, Washington, D.C., for Petitioners. M. Jocelyn Lopez Wright, Senior Litigation, Office of Immigration Litigation, Civil Division, United States Department Of Justice, Washington, D.C., for Respondent. ON BRIEF: Robert D. McCallum, Jr., Assistant Attorney General, David V. Bernal, Assistant Director, Andrew C. MacLachlan, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge King and Judge SHEDD joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case involves a question of first impression: do aliens denied temporary resident status under the amnesty provisions of the Immigration Reform and Control Act (IRCA), 8 U.S.C. § 1255a (2000), retain a right to judicial review of that decision given the amendments to that statute by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009, 546-724 (1996). We conclude that the amended statute does preserve a right to limited judicial review and therefore, when reviewing a final deportation order, the courts of appeal continue to have jurisdiction to review an amnesty denial. Possessing jurisdiction, we find that the Immigration and Naturalization Service (INS) committed no error in denying the applications for amnesty and ordering the removals at issue in this case. Accordingly, we deny the petition for review.

I.

In May 1988, Aldo A. Orquera, his wife Gladis M. Orquera, and their adult children, Ariel O. Orquera and Ariadna B. Orquera ("the Orqueras"), each filed applications to become lawful temporary residents under IRCA. That statute provides for amnesty and adjustment to lawful status for an applicant who demonstrates that he has resided continuously in the United States in unlawful status since January 1, 1982, see 8 U.S.C. § 1255a(a)(2)(A), has been physically present in the United States continuously since November 6, 1986, see § 1255a(a)(3)(A), and is otherwise admissible as an immigrant, see § 1255a(a)(4). Ariadna Orquera applied "as an alien who illegally entered the U.S. prior to January 1, 1982"; the others applied as aliens who entered the United States as nonimmigrants prior to January 1, 1982, and whose authorized stay expired before such date or whose unlawful status was known to the Government as of January 1, 1982.

In their applications for amnesty, the Orqueras submitted that they entered the United States using B-2 visitor visas issued in 1980 that expired in 1981, and that they were therefore unlawfully present in the United States on January 1, 1982. The INS, however, discovered some evidence that the Orqueras, in addition to their B-2 visas, had been accredited, as consular employees or family of such employees, with A-2 visas. The INS accordingly requested that the Orqueras submit evidence that they were not legally present as consular employees or family with A-2 visas.

In 1990, finding their additional submissions lacking, the Director of the INS Regional Processing Center denied the Orqueras' applications for amnesty. The Orqueras appealed the Director's denials on a number of grounds.

In 1996, the INS's Legalization Appeals Unit ("LAU") affirmed the denials. Although the decision as to each application varied slightly, in essence the LAU concluded that Aldo Orquera had been granted A-2 nonimmigrant status, and his family received derivative A-2 status as a result of his employment by a foreign government. The LAU found that Mr. Orquera had not demonstrated that he "ceased to be recognized by the Department of State as being entitled to such [A-2] classification prior to January 1, 1982," or that his qualifying employment had terminated by that date, and that he, and by extension his family, had therefore failed to show that they were in "unlawful status," as required for eligibility under the amnesty program.

On April 13, 1998, the Orqueras requested that the INS commence removal proceedings against them. In their letter to the INS, the Orqueras' attorney explained that they sought commencement of removal proceedings to challenge the denial of their applications for amnesty. Under § 1255a(f)(4)(A), an alien may obtain judicial review of a denial of an application for amnesty only in review of a final deportation order; thus, after the INS denied their applications for amnesty, the Orqueras could not immediately seek judicial review, but instead had to wait until they were subject to a removal order. Reno v. Catholic Soc. Serv., 509 U.S. 43, 54-55, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993).

On June 15, 1998, the INS commenced removal proceedings against the Orqueras. On November 9, 1998, the Orqueras appeared before an immigration judge; they stated that they sought "to appeal the legalization [amnesty] decision knowing that this Court does not have jurisdiction over it, but nevertheless, having to come here before you to be able to proceed to the next level at which we can have the case reviewed on the merits." The Orqueras admitted that they were removable and the judge entered orders of voluntary departure and removal.

The Orqueras then appealed the orders of removal to the Board of Immigration Appeals ("BIA"). Although the Orqueras recognized that the BIA did not have jurisdiction to review the denials of their applications for amnesty, they submitted a brief to the BIA that argued the merits of their amnesty claim "in order to supplement the record for the Fourth Circuit Court of Appeals as this court has jurisdiction to review these applications." The Orqueras argued that Aldo Orquera had accepted unauthorized employment in violation of the conditions of his A-2 visa prior to January 1, 1982, that the Government knew of this unauthorized employment, and that the Orqueras were therefore in unlawful status as required by the amnesty eligibility rules. The BIA dismissed the Orqueras' appeal, finding it had no jurisdiction to "review the propriety of the Service's decision to deny ... an alien's temporary resident status" and ordered the Orqueras to depart the United States voluntarily within 30 days from the date of the order, February 26, 2002.

The Orqueras then petitioned for review of their orders of removal to this court. Once again, they contend that INS should have granted them amnesty in May 1988 and that, if they had been granted amnesty, they would now be lawfully present in the United States and so not subject to removal. Our decision whether to uphold the orders of removal and deny the petition for review accordingly turns on whether INS properly denied their applications for amnesty. Before addressing this question, however, we must determine if we have jurisdiction to consider this appeal.

II.

Separate provisions of Title 8 govern our jurisdiction to review a final order of removal generally and, in the course of such review, to look back and review a prior amnesty denial: § 1252 provides us with jurisdiction to review a final order of removal and § 1255a(f)(4)(A) provides us with jurisdiction to review the denial of amnesty in certain limited circumstances. The parties agree that § 1255a(f)(4)(A) empowers us with jurisdiction to review the amnesty denials in this case. The parties cannot, however, create subject matter jurisdiction or waive its absence. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ("[N]o action of the parties can confer subject matter jurisdiction upon a federal court. Thus the consent of the parties is irrelevant."). We therefore undertake an independent analysis of our jurisdiction to review the amnesty denials at issue here.

IRCA provides at the outset of its judicial review subsection that "[t]here shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection." § 1255a(f)(1). Thus, a court can review the denial of an application for amnesty only as provided in subsequent jurisdictional provisions set forth in IRCA at § 1255a(f)(4)(A)-(C).

Section 1255a(f)(4)(A) governs judicial review of individual amnesty denials. From the time of the enactment of IRCA in 1986 until its 1996 amendment by IIRIRA, § 1255a(f)(4)(A) provided:

Limitation to review of deportation. There shall be judicial review of such denial only in the judicial review of an order of deportation under section 1105a of this title.

8 U.S.C. § 1255a(f)(4)(A) (1994) (prior to IIRIRA amendment) (emphasis added). Section 1105a set forth the scope of judicial review of orders of deportation generally — "the procedure prescribed by, and all the provisions of chapter 158 of Title 28 [providing for appellate review of final agency orders] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation."

Prior to the 1996 IIRIRA amendment, a significant body of case law considered the interplay between the judicial review provisions of § 1255a(f)(4)(A) and § 1105a (what is often referred to as the "exclusive review scheme" of IRCA). Ultimately the Supreme Court held that these judicial review provisions generally mean that (1) district courts do retain jurisdiction to hear challenges to the processes and procedures adopted by the INS in administering IRCA, provided that such review does not encompass the denial of any individual application and that the claims...