Prado v. Reno, 99-1297

Decision Date01 November 1999
Docket NumberNo. 99-1297,99-1297
Citation198 F.3d 286
Parties(1st Cir. 1999) MARIA TERESA PRADO, Petitioner, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. . Heard
CourtU.S. Court of Appeals — First Circuit

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

Patrick D. O'Neill, with whom Martinez, Odell & Calabria was on brief, for petitioner.

Linda S. Wernery, Attorney, Office of Immigration Litigation, with whom David W. Ogden, Acting Assistant Attorney General, and Kristen A. Giuffreda, Senior Litigation Counsel, were on brief, for respondent.

Before Torruella, Chief Judge, Wallace* and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

Maria Teresa Prado appeals from a Board of Immigration Appeals (BIA) final order of removal, or more specifically, from the BIA's dismissal of her motion to reopen earlier proceedings that had resulted in a decision to remove her. She is the mother of two children, both U.S. citizens, and the wife of a U.S. citizen.

Prado1 asserts two claims on appeal. Her first claim is that the BIA erred when it failed to exercise its authority under 8 C.F.R. § 3.2(a) to reopen her case on its own motion, when her motion to reopen was untimely. The Immigration and Naturalization Service (INS) asserts that jurisdiction over this claim is barred by Immigration and Naturalization Act (INA) § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), a permanent provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546.2 INA § 242(a)(2)(B) states that "no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under . . . [INA § 245]." Section 245 of the INA, 8 U.S.C. § 1255, governs adjustment of status, the relief ultimately sought by Prado. If § 242(a)(2)(B) does not apply, the INS concedes there is statutory jurisdiction under § 242(b), 8 U.S.C. § 1252(b).

Prado also asserts that INS District Counsel should have consented to her motion to reopen. If he had done so, then the untimeliness of her motion to reopen would have been forgiven. See 8 C.F.R. § 3.2(c)(3)(iii). The INS argues that INA § 242(g), 8 U.S.C. § 1252(g), which states that "no court shall have jurisdiction to hear any cause or claim . . . arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders," precludes our review of this claim.

We recently addressed similar jurisdictional questions under IIRIRA's transitional rules in Mendes v. INS, 197 F.3d 6 (1st Cir.1999), Luis v. INS, 196 F.3d 36 (1st Cir. 1999), and Bernal-Vallejo v. INS, 195 F.3d 56 (1st Cir. 1999). Much of the logic of our analysis in those cases applies here. In Bernal-Vallejo, we held that "whether [IIRIRA] § 309(c)(4)(E) precludes jurisdiction depends on the precise grounds upon which the decision of the [BIA] rests and the precise nature of the claims made in the petition." Bernal-Vallejo, 195 F.3d 59, We hold today that whether jurisdiction is removed by INA § 242(a)(2)(B) requires a similar inquiry,3 and that, in general terms, the section bars the exercise of jurisdiction only where the BIA decision as to which review is sought is a "judgment regarding the granting of relief under" one of the enumerated sections.

In Prado's case, we conclude that INA § 242(a)(2)(B) does not preclude review of her claim that the BIA erred in failing to reopen her case on its own motion. Other doctrines, however, do preclude our review.

We further hold that we lack jurisdiction to review Prado's claim that INS District Counsel should have consented to her motion to reopen.

I

Prado is thirty-eight years old and is a native and citizen of Venezuela. She is married to a United States citizen and has two children under age ten, both of whom were born in the United States. Prado entered the United States lawfully in February, 1994, under a tourist visa which allowed her to visit for five months.4 She overstayed. The INS instituted removal proceedings against her with a Notice to Appear on April 4, 1997, after she and her family had appeared before an INS officer in San Juan to request information regarding what Prado needed to do to become a citizen. On September 16, 1997, in proceedings before an Immigration Judge (IJ), Prado admitted that she had overstayed her visa and requested relief in the form of voluntary departure under INA § 240B, 8 U.S.C. § 1229c. The IJ granted this relief and allowed Prado to depart voluntarily by January 16, 1998, giving Prado the maximum period permitted under the statute -- 120 days. See INA § 240B(a)(2). Voluntary departure was the only relief Prado sought before the IJ. She did not at that time seek adjustment of status based upon her marriage to a U.S. citizen, presumably because she had not yet procured the requisite immediate relative visa. See INA § 245(a); 8 C.F.R. § 245.2(a)(2). Prado's counsel was also given written notice that Prado's failure to depart by January 16, 1998, absent compelling circumstances beyond her control, would result in her being ineligible for various forms of relief, including adjustment of status under INA § 245. If Prado wished to stay, she had only 90 days to file a motion to reopen. See 8 C.F.R. § 3.2(c)(2).

On November 19, 1997, the INS approved an immediate relative visa petition that Prado's husband had filed on her behalf, rendering Prado eligible to apply for adjustment of status. A month later, on December 18, 1997, Prado did apply for adjustment of status; however, she filed her application with the INS District Director in Puerto Rico, when such an application should have been filed, along with a motion to reopen, with the IJ. See 8 C.F.R. § 245.2(a)(1). Meanwhile, Prado had less than one month remaining in her voluntary departure period.

On January 7, 1998, nine days before her voluntary departure date, Prado delivered a letter to the INS District Director requesting an extension of the period "for the maximum amount of time allowed under present regulations" so that she could remain in the United States while her application for adjustment of status was processed. The District Director denied this request, explaining that Prado had already been granted the maximum allowable time for her period of departure.

On March 24, 1998, Prado filed a motion with the IJ to reopen her removal proceedings so she could apply for adjustment of status. She also requested the INS to join this motion. The INS opposed Prado's motion to reopen because Prado's term for voluntary departure had lapsed and she had not voluntarily departed. On May 19, 1998, the IJ denied the motion.

Prado appealed the denial of her motion to reopen to the BIA. On March 2, 1999, the BIA dismissed her appeal on the ground that the motion had been filed late. Prado's motion to reopen needed to be filed within 90 days of the IJ's decision, or, by December 15, 1997, but Prado had filed her motion to reopen on March 24, 1998. The BIA noted that even if Prado's improperly filed application for adjustment of status were deemed the equivalent of filing a motion to reopen, this application was still filed three days late, on December 18, 1997. Thus, the request for adjustment of status has never been ruled on, largely because Prado failed to take steps to present the issue in a timely fashion.

II

Prado raises two issues before this court. First, Prado asserts that given the exceptional circumstances of her case, the BIA erred in failing to invoke its authority under 8 C.F.R. § 3.2(a) to reopen her case sua sponte and allow her to apply for adjustment of status. Second, Prado appeals the INS District Counsel's refusal to join her motion to reopen. Both parties agree that this case is subject to the jurisdictional provisions of INA § 242 because Prado was placed in deportation proceedings after April 1, 1997.

There is no dispute that Prado's motion to reopen was untimely. Prado relies on the only two avenues available that provide mechanisms for consideration of such an untimely motion. First, under 8 C.F.R. § 3.2(a), the BIA may reopen "on its own motion any case in which it has rendered a decision." Second, under 8 C.F.R. § 3.2(c)(3)(iii), the IJ could have entertained Prado's untimely motion had the INS consented.

A. Challenge Based on BIA's Authority to Reopen Sua Sponte

The INS contends that INA § 242(a)(2)(B) bars this court from hearing Prado's claim that the BIA should have invoked its sua sponte authority to reopen her case. We disagree.

The INS correctly points out that the prohibition in INA § 242(a)(2)(B), the permanent rule, is broader than the prohibition in IIRIRA § 309(c)(4)(E), the transitional rule. INA § 242(a)(2)(B) bars review of "any judgment regarding the granting of relief under" enumerated sections of the INA, while IIRIRA § 309(c)(4)(E) precludes judicial review of "discretionary decisions under" enumerated sections of the INA. Thus, the permanent rules remove more than "discretionary decisions" from review in the courts of appeals.

In Bernal-Vallejo, we held that review of certain non-discretionary decisions, such as whether a minimum residency period required for certain forms of relief, was not precluded under IIRIRA § 309(c)(4)(E). See Bernal-Vallejo, 195 F.3d at 61-62. The focus under INA § 242(a)(2)(B), in contrast, is on whether the BIA decision for which review is sought constitutes a "judgment regarding the granting of relief under" one of the enumerated sections. See INA § 242(a)(2)(B). In this case, then, the question is whether the BIA's dismissal of Prado's appeal from the denial of the motion to reopen was a "judgment regarding the granting of relief under" INA § 245. We conclude that it was not.

IIRIRA has presented the courts with a tangle of difficult jurisdictional issues. We have struggled to interpret the provisions of the statute in light of congressional intent and...

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