Pilica v. Ashcroft

Citation388 F.3d 941
Decision Date15 November 2004
Docket NumberNo. 02-4348.,02-4348.
PartiesSead PILICA, Petitioner, v. John ASHCROFT, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Robert M. Birach, Detroit, MI, for Petitioner.

Stephen J. Flynn, Mary Jane Candaux, United States Department of Justice, Washington, D.C., for Respondent.

Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge.*


MARBLEY, District Judge.

Petitioner, Sead Pilica, is a native and citizen of Yugoslavia. He seeks reversal of the October 30, 2002, decision of the Board of Immigration Appeals ("BIA" or the "Board") affirming the denial of his asylum application and denying his motion to remand. Petitioner argues (1) that the BIA abused its discretion by denying the motion to remand in a summary decision; (2) that the BIA erred by applying the current standard of review to his appeal rather than the standard in effect when his case commenced; and (3) that the denial of asylum by the Immigration Judge ("IJ") was not supported by substantial evidence. Respondent, John Ashcroft, in addition to contesting Petitioner's arguments, contends that this Court lacks jurisdiction to review the BIA's denial of the motion to remand.

Based on the following analysis, the Court finds jurisdiction over the denial of the motion to remand to be proper. In its exercise of that jurisdiction, the Court REMANDS this case to the Board to provide an explanation for that denial. The BIA's decision on Petitioner's asylum and withholding of removal claims is AFFIRMED.


Petitioner entered the United States without inspection on August 22, 1991. On February 13, 1998, the Immigration and Naturalization Service served Pilica with a Notice to Appear charging him with removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1182(a)(6)(A)(i). At a hearing before the IJ, Pilica, through counsel, admitted the factual allegations of the Notice to Appear, conceded removability, and requested a continuance to apply for asylum. Pilica requested the following relief: (1) asylum pursuant to INA § 208(a), 8 U.S.C. § 1158(a); (2) withholding of removal pursuant to INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); (3) withholding of removal under the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention Against Torture") pursuant to 8 C.F.R. § 208.16(c), et seq.; and (4) in the alternative, voluntary departure pursuant to INA § 240B, 8 U.S.C. § 1229c. A hearing on the merits of Pilica's claims was held on April 9, 2001.

Petitioner and his brother, Nedin Pilica, were the only two witnesses at the hearing. Documentary evidence presented included Pilica's written asylum applications; a hospital report confirming that Pilica had suffered a head injury; and numerous documents relating to country conditions in Yugoslavia. Petitioner testified that he is an ethnic Albanian who had been politically active with the Albanian Democratic Party in Montenegro, the Yugoslavian republic in which he lived. He testified that he had twice been arrested as a result of his participation in Albanian Democratic Party demonstrations. He was detained for a week in conjunction with each arrest.1 Pilica testified that during a third demonstration, he was beaten by policemen, resulting in head injuries and hospitalization for a week.2

At the conclusion of the hearing, the IJ orally denied Pilica's applications for asylum, withholding of removal, Convention Against Torture relief, and voluntary departure. The IJ found that Pilica lacked credibility and had failed to establish statutory eligibility for relief. The IJ based his adverse credibility finding on inconsistencies between the testimony of Pilica and his brother, internal inconsistencies in Pilica's testimony, inconsistencies between the written asylum applications and Pilica's testimony at the hearing, and Pilica's failure to corroborate his testimony. The IJ ultimately found that Pilica had not established by credible evidence that he had suffered any prior torture or persecution. In the alternative, the IJ found that, even assuming Pilica's credibility, he had not demonstrated past persecution, a well-founded fear of future persecution, or that it was more likely than not that he would be subject to torture if he returned to Montenegro. The IJ based this finding on country condition evidence relating to Montenegro and on the fact that Pilica's political involvement was "sparse," consisting only of having attended a few demonstrations at which he held up a sign, clapped, and yelled.

Pilica filed a timely notice of appeal with the BIA. While his appeal was pending, Pilica filed a motion for remand, requesting that the case be remanded to allow him to seek relief, in the form of adjustment of status, that was not available to him at the time of his original hearing. On October 30, 2002, the Board affirmed without opinion the decision of the IJ. In the same decision, the Board also denied, again without opinion, the motion to remand. Pilica seeks review of the Board's decision.

A. Motion to Remand
1. Jurisdiction

As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the following provision was enacted: "Notwithstanding any other provision of law, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section... 1255 of this title ...." 8 U.S.C. § 1252(a)(2)(B), INA § 242(a)(2)(B). Section 1255, in turn, is entitled, "Adjustment of status of nonimmigrant to that of person admitted for permanent residence," and states that adjustment of status may be granted in the discretion of the Attorney General. 8 U.S.C. § 1255, INA § 245. Based upon the language of § 1252(a)(2)(B), it is clear that this Court lacks jurisdiction over the Attorney General's discretionary determination of whether an alien should be granted adjustment of status. Here, however, Petitioner does not appeal from a discretionary determination denying him an adjustment in status. Rather, he appeals from the BIA's denial of his motion in which he sought a remand in order to permit him to apply for an adjustment of status.3 The question is whether the denial of the motion to remand was a judgment "regarding the granting of relief" under § 1255. 8 U.S.C. § 1252(a)(2)(B).

The Sixth Circuit has not addressed this precise issue; however, two cases from other Circuits are instructive. In Prado v. Reno, 198 F.3d 286 (1st Cir.1999), the First Circuit held that INA § 242(a)(2)(B) did not preclude review of the petitioner's claim that the BIA erred in failing to reopen her case. The petitioner had sought a reopening so that she could request an adjustment of status under INA § 245-the same relief as ultimately was desired by Pilica. Prado at 288. While finding plausible the INS's reading of the statute as precluding review of any decision related to relief under an enumerated section, the court ultimately found that the language of the statute should be narrowly read so as only to preclude review of a decision that actually granted or denied relief under an enumerated section:

The decision as to which Prado seeks review is not a BIA judgment on whether to adjust Prado's status, which would be a "judgment regarding the granting of relief under" an enumerated section, but is rather a decision not to reopen under 8 C.F.R. § 3.2....

Why, it might be asked, should review of a decision under INA § 245 not to grant an adjustment of status be precluded, while judicial review of the denial of a motion to reopen to petition for adjustment of status is permitted? As explained below, the window for review is narrow; because of other doctrines of jurisdiction and judicial restraint, not all denials of motions to reopen are reviewable. But as to those denials of motions to reopen that are otherwise reviewable, there are several reasons supporting this distinction in our reading of INA § 242(a)(2)(B). The INS has established procedures governing motions to reopen an alien's case when new material information becomes available. In pre-IIRIRA cases, the denial of a motion to reopen was reviewed for abuse of discretion. The language chosen by Congress in INA § 242(a)(2)(B) does not evidence an intent to eliminate this entirely rational, small safety valve-court review that ensures that the agency at least considers new information, even if its ultimate and unreviewable judgment denies the relief sought. It may also be that Congress wished the agency to live by its rules. Congress may have desired court review to provide a minimal control on administrative arbitrariness such as where a motion to reopen is timely filed but the agency denies it on grounds of untimeliness. The space left open for judicial review is quite narrow, but it is not irrational for the window to be open a crack, if not wide open.

Id. at 290-91 (citations omitted).

In Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir.2003), the Ninth Circuit provided less extensive reasoning, but ultimately reached the same result:

This case does not involve a "judgment regarding the granting" of voluntary departure [addressed in one of the enumerated sections]. It involves a decision regarding the denial of a motion to reopen....

Because we are not asked to review the discretionary denial or granting of voluntary departure, ... § 1252(a)(2)(B)(i) [does not] prevent[] us from exercising jurisdiction.

Zazueta-Carrillo at 1170.

Several courts, in addressing the transitional rules of IIRIRA, have held that, pursuant to those rules, a court lacks jurisdiction only to review an order that addresses the merits of an alien's request for relief under one of the enumerated sections.4 E.g., Mickeviciute v. INS...

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