Vakker v. Attorney General of U.S.

• Decision Date: 14 March 2008
• Docket Number: No. 06-1949.,06-1949.
• Citation: 519 F.3d 143
• Parties: Boris VAKKER, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

519 F.3d 143

Boris VAKKER, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-1949.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) February 12, 2008.

Opinion Filed March 14, 2008.

Sandra L. Green, York, PA, for Petitioner.

Peter D. Keisler, Douglas E. Ginsburg, John D. Williams, Lyle D. Jentzer, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: SLOVITER, SMITH and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In the course of removal proceedings brought against him by the Immigration and Naturalization Service, Boris Vakker, a "paroled" alien, requested that the Immigration Judge ("IJ") permit him to renew a previously denied application for adjustment of status. The IJ denied the request. While the proceedings were on appeal to the Board of Immigration Appeals ("BIA"), Vakker filed a motion with the BIA to remand his case to the IJ for reconsideration of the adjustment of status issue predicated upon an intervening case of this court. The BIA denied the motion to remand, and Vakker petitions this court for review of that ruling. For the reasons that follow, we will deny the petition.

I

Petitioner, a native of Russia, initially arrived in the United States after being granted "parole" status. 8 U.S.C. § 1182(d)(5). He then applied for adjustment of status. 8 U.S.C. § 1255; 8 C.F.R. 245.7. However, while that application was pending, he was convicted of conspiracy to commit alien smuggling. His conviction rendered him ineligible for adjustment of status, 8 U.S.C. § 1182(a)(6)(E), and the Immigration and Naturalization Service ("INS"), now the Department of Homeland Security's Citizen and Immigration Services ("CIS"), therefore denied his application.

Following his conviction, the INS served petitioner with a Notice to Appear, charging him with removability on three grounds: conviction of a crime involving moral turpitude, lack of entry documents, and alien smuggling. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1182(a)(7)(A)(i)(I), 1182(a)(6)(E)(i). The IJ found him removable. Petitioner sought asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). Petitioner also sought to renew his application for adjustment of status.

The IJ determined that petitioner qualified for withholding of removal. The IJ, however, denied petitioner's request to renew his adjustment of status application because, it concluded, then-applicable regulations precluded all "paroled" aliens from seeking adjustment of status, 8 C.F.R. § 1245.1(c)(8) (repealed May 12, 2006), invalidated by Zheng v. Gonzales, 422 F.3d 98 (3d Cir.2005),¹ and the IJ therefore lacked jurisdiction over such an application.

The Attorney General appealed the IJ's decision granting petitioner withholding of removal to the BIA. Petitioner did not initially appeal the IJ's denial of his request to renew his "adjustment of status" application; however, after this court's ruling in Zheng v. Gonzales, 422 F.3d 98 (3d Cir.2005), which invalidated the regulation on which the IJ had relied, petitioner filed a motion with the BIA to remand the proceedings to the IJ for reconsideration of his request to renew his "adjustment of status" application.

The BIA issued a decision in which it dismissed the Attorney General's appeal because it agreed with the IJ that petitioner is eligible for withholding of removal. In the same decision, the BIA also denied petitioner's motion to remand on the "adjustment of status" issue. The BIA acknowledged that Zheng invalidated the authority upon which the IJ had relied. However, the BIA ruled that petitioner was nevertheless ineligible to renew his adjustment of status application "because he [did] not meet the renewal requirements under 8 C.F.R. § 1245.2(a)." A.R. at 11.

Vakker petitions this court for review of the BIA's denial of his motion to remand.

II

This court generally reviews motions to remand deportation proceedings, like motions to reopen or reconsider, for abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 272, 279-83 (3d Cir.2005); Shardar v. Attorney General, 503 F.3d 308, 311-12 (3d Cir.2007). However, this court's review of the legal standards that the BIA applied when it denied Vakker's motion to remand is de novo: "questions of law, such as whether the BIA applied the correct legal standard in considering the motion to reopen and the underlying [legal] claim . . . are [ ] reviewed de novo." Fadiga v. Attorney General, 488 F.3d 142, 153-54 (3d Cir.2007). See also Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006).

III

Vakker asserts that, following Zheng, he is facially eligible to renew his adjustment of status application, and that the BIA's decision denying his motion to remand on that issue was inadequate and denied him due process of the law. The Attorney General raises a jurisdictional challenge to Vakker's petition, which we will address before reaching the merits of Vakker's claims.

A

The Attorney General argues that Vakker's petition for review was untimely. Pursuant to 8 U.S.C. § 1252(b)(1), "a petition for review must be filed not later than thirty days after the date of the final order of removal." We have jurisdiction over Vakker's petition under 8 U.S.C. § 1252(a)(1) and § 1252(b)(2) only if the petition was timely. See Stone v. I.N.S., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) ("[j]udicial review provisions . . . are jurisdictional in nature"). We conclude that the petition was timely.

The BIA's February 14, 2006, "decision and order" resolved several issues and concluded with three "orders": one denying Vakker's motion to remand, one dismissing the Attorney General's appeal, and one remanding the proceedings to the IJ for certain identity and background checks that are a prerequisite to the entry of any order granting withholding of removal.² Upon completion of those checks, the IJ issued a final order on March 13, 2006, granting Vakker withholding of removal. Vakker filed his petition for review on March 17, 2006. App. at 2. Therefore, his petition was untimely if the BIA's decision was the pertinent "final order," and it was timely if the IJ's order upon remand was the "final order."

Ordinarily, when the BIA remands removal proceedings to the IJ pursuant to 8 C.F.R. §§ 1003.47(h), the "final order" in the removal proceedings is the IJ's order following remand. In re Fabricio Alcantara-Perez, 23 I. & N. Dec. 882 (B.I.A. Feb. 23, 2006).³ The Attorney General argues, however, that the various orders in the BIA's February 14, 2006, decision became "final" at different times: that the BIA's order denying Vakker's motion to remand was a "final order," even if Vakker's removal proceedings became final later, in the IJ's March 13 order. We do not interpret the proceedings in that manner.

Certainly, orders denying motions to remand, like orders denying motions to reopen or reconsider, can qualify as independent final orders over which this court can, in appropriate circumstances, assume jurisdiction. See Korytnyuk v. Ashcroft, 396 F.3d 272, 279-83 (3d Cir.2005); Shardar v. Attorney General, 503 F.3d 308, 311-12 (3d Cir.2007); Cruz v. Attorney General, 452 F.3d 240, 246 (3d Cir.2006); Sevoian v. Ashcroft, 290 F.3d 166, 169-75 (3d Cir.2002). Indeed, this court has stated that:

we can independently review the denial of a motion to reopen or reconsider . . . [and] a proper petition for review must be filed within [the appropriate time] of the specific order sought to be reviewed.

Alleyne v. I.N.S., 879 F.2d 1177, 1180 (3d Cir.1989) (emphasis in original; internal quotation omitted). However, these cases do not establish that an order denying a motion to remand necessarily becomes "final" immediately, irrespective of the status of the proceedings in which it is entered.

8 C.F.R. § 1003.2(c)(4) provides: "A motion to reopen a decision rendered by an Immigration Judge . . . that is filed while an appeal is pending before the Board, may be deemed a motion to remand for further proceedings before the Immigration Judge . . . from whose decision the appeal was taken. Such motion may be consolidated with, and considered by the Board in connection with, the appeal to the Board." Id. (emphasis added).

Here, the BIA chose to consolidate petitioner's motion to remand with the Attorney General's appeal of Vakker's removal proceedings rather than to entertain that motion as an independent proceeding. It issued just one decision which addressed both the Attorney General's appeal and Vakker's motion. This was, of course, not surprising given that petitioner had originally raised both issues — relief from deportation, and renewal of his adjustment of status application — in the same hearings before the IJ, and the IJ had addressed both issues in those hearings. Petitioner presented the "adjustment of status" issue to the BIA in a motion to remand rather than in a traditional appeal only because the motion relied on intervening case law published after the IJ issued his original decision. Therefore, the two issues had in fact been considered and addressed jointly both by the IJ and by the BIA. As a result of the BIA's consolidation of these matters, it follows that its February 14, 2006, order did not finally adjudicate all issues in the proceeding in which it was entered and was therefore not a final order.

The Attorney General identifies no authority indicating that the pertinent judicial review provisions operated to render the BIA's orders "final" at different times under the circumstances of this case, and we find none. The Attorney General relies on Popal v. Alberto Gonzales, 416 F.3d 249 (3d Cir.2005). That case is inapposite: it concerned exhaustion rather than what constitutes a "final order," and its reasoning does not support the notion that there were multiple "final orders" in this case....