Singh v. Holder
| Decision Date | 13 November 2014 |
| Docket Number | Nos. 09–73798,10–72626.,s. 09–73798 |
| Citation | 771 F.3d 647 |
| Parties | Tarlock SINGH, aka Tarlochan Singh, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. Tarlock Singh, aka Tarlochan Singh, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Zachary Miller Nightingale, Avantika Shastri (argued) and Amalia Margarete Wille, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA; Babak Pourtavoosi, Jackson Heights, N.Y., for Petitioner.
Blair T. O'Connor (argued), Assistant Director; Remi Da Rocha–Afodu, Attorney; Tony West, Assistant Attorney General, Civil Division; Holly M. Smith, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073–133–622.
Before: RAYMOND C. FISHER, MARSHA S. BERZON and MORGAN CHRISTEN, Circuit Judges.
For the second time in six years, we hold that the Board of Immigration Appeals has authority to reopen proceedings of an alien who is under a final order of removal in order to afford the alien an opportunity to pursue an adjustment of status application before United States Citizenship and Immigration Services. See Kalilu v. Mukasey, 548 F.3d 1215, 1217–18 (9th Cir.2008). This authority is granted, at minimum, by the unambiguous language of 8 C.F.R. § 1003.2(a), which states that “[t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” Because the Board's contrary holding in Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009), contravenes this regulation's plain language, we accord it no deference and decline to follow it.
In 2008, an immigration judge (IJ) found the petitioner, Tarlochan Singh, excludable from the United States, denied Singh's requests for asylum, withholding of removal and relief under the Convention Against Torture and ordered that he be excluded and deported from the country. Singh appealed the IJ's decision to the Board of Immigration Appeals (BIA or Board), and the Board dismissed Singh's appeal, making Singh subject to an administratively final order of removal. See Ocampo v. Holder, 629 F.3d 923, 928 (9th Cir.2010) ; 8 U.S.C. § 1101(a)(47)(B) ; 8 C.F.R. § 1241.1(a).
Ninety days later, in February 2010, Singh filed a timely motion to reopen his exclusion proceedings. See 8 U.S.C. § 1229a(c)(7)(C)(i) (); 8 C.F.R. § 1003.2(c)(2) (same). In his moving papers, Singh explained that he had married Patricia Kay Singh, a United States citizen, in January 2009. In June 2009, Ms. Singh had filed an immigration visa petition on Singh's behalf, and in August 2009, United States Citizenship and Immigration Services (USCIS) had approved the petition. Accordingly, in November 2009, Singh had filed an application for adjustment of status with USCIS, seeking to adjust his status to that of legal permanent resident. Singh argued that the Board should reopen and continue his exclusion proceedings to afford him an opportunity to pursue his adjustment of status application before USCIS without the risk of being removed. Reopening would have protected Singh from removal because “the grant of a motion to reopen automatically vacates” a removal order. Plasencia–Ayala v. Mukasey, 516 F.3d 738, 745–46 (9th Cir.2008), overruled on other grounds by Marmolejo–Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc). Without reopening, Singh remains subject to a final order of removal and could be removed from the United States. If removed, his adjustment of status application would be deemed abandoned, see 8 C.F.R. § 245.2(a)(4)(ii)(A), and he would be precluded from reapplying for adjustment of status until he returned to the United States, which he could not do for 10 years, see 8 U.S.C. § 1182(a)(9)(A)(ii)(II) ; 8 C.F.R. § 245.1(a). See Kalilu, 548 F.3d at 1218.
The BIA nonetheless denied Singh's motion to reopen. Relying on its precedential decision in Matter of Yauri, 25 I. & N. Dec. 103, decided after Kalilu, the Board ruled that “we do not have authority to reopen proceedings of aliens who are under a final order of exclusion to pursue an adjustment application where we have no jurisdiction over the adjustment application.”
The Board suggested that Singh should request a stay of removal from the Department of Homeland Security (DHS), the agency, acting through USCIS, with jurisdiction over his adjustment application.1 Singh timely petitioned for review.
The denial of a motion to reopen is a final administrative decision subject to our judicial review. See Oyeniran v. Holder, 672 F.3d 800, 805 (9th Cir.2012). Our jurisdiction arises under 8 U.S.C. § 1252. See Meza–Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir.2012).
We held in Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002), that we lack jurisdiction to review a BIA decision not to reopen proceedings sua sponte under 8 C.F.R. § 3.2(a), now 8 C.F.R. § 1003.2(a). See also Sharma v. Holder, 633 F.3d 865, 874 (9th Cir.2011) ; Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir.2009) ; Toufighi v. Mukasey, 538 F.3d 988, 993 n. 8 (9th Cir.2008) ; Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir.2002). That jurisdictional bar, however, rests on the absence of a judicially manageable standard for us to evaluate the BIA's exercise of discretion in ruling on a motion to reopen. See Ekimian, 303 F.3d at 1159. Where, as here, the BIA concludes that it lacks the authority to reopen, rather than denying a motion to reopen as an exercise of discretion, we hold that Ekimian does not preclude our jurisdiction.2
We review the denial of a motion to reopen for an abuse of discretion. See Cano–Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). “The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law, and when it fails to provide a reasoned explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir.2014) (internal quotation marks omitted).
“An agency's interpretation of its own regulation is ‘controlling’ if it is not ‘plainly erroneous or inconsistent’ with the regulation.” L.A. Closeout, Inc. v. Dep't of Homeland Sec., 513 F.3d 940, 942 (9th Cir.2008) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ). Thus, “we defer to the agency's interpretation ... unless an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation.” Id. (alteration in original) (quoting Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir.2006) ) (internal quotation marks omitted).
In his petition for review, Singh contends the BIA abused its discretion when it concluded that it lacked authority to reopen his exclusion proceedings. We agree. Because the BIA denied Singh's motion to reopen in reliance on its precedential decision in Matter of Yauri, we begin by summarizing that decision.
In 2003, the BIA entered a final administrative order in Yauri's removal proceedings, dismissing Yauri's appeal from the immigration judge's decision. See Matter of Yauri, 25 I. & N. Dec. at 103. Four years later, Yauri filed an untimely motion to reopen, arguing that the Board should reopen her removal proceedings and then continue them indefinitely so she could pursue an application for adjustment of status before USCIS without being subject to a final order of removal. See id. at 103–04. Because her motion was untimely, Yauri urged the Board to use its authority to reopen her removal proceedings sua sponte under 8 C.F.R. § 1003.2(a). See id. at 104. That regulation states that “[t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). Motions to reopen under § 1003.2(c), by contrast, generally must be filed within 90 days. See id. § 1003.2(c)(2).
The Board denied Yauri's motion to reopen. It began by noting that, because Yauri was an arriving alien rather than an admitted one, only USCIS, not an immigration judge or the BIA, had jurisdiction over Yauri's application for adjustment of status. See Matter of Yauri, 25 I. & N. Dec. at 107 (citing 8 C.F.R. § 245.2(a)(1) ). Next, the Board reasoned that, although Yauri had filed a motion to reopen and continue her removal proceedings pending USCIS' consideration of her adjustment application, Yauri effectively was seeking “a stay of removal pending adjudication of an application by the USCIS.” Id. at 108–09 & n. 4 (emphasis added). Thus, rather than asking whether it had authority to reopen and continue Yauri's proceedings, the Board asked whether it had statutory or regulatory authority to issue a “stay” of removal. See id. at 108–10.
The Board held that it lacked such authority. It reasoned that the sole source of its authority to enter a stay of removal was found in 8 C.F.R. § 1003.2(f) and concluded that § 1003.2(f) did not authorize a stay of removal for purposes of pursuing an application for adjustment of status before another agency. See id. at 109.3 The Board said:
To continue reading
Request your trial