Vargas v. I.N.S.
| Decision Date | 28 June 1991 |
| Docket Number | No. 1270,D,1270 |
| Citation | 938 F.2d 358 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | Simon B. VARGAS, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee. ocket 90-4189. |
Michael P. DiRaimondo, New York City, for petitioner-appellant.
Timothy MacFall, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Diogenes P. Kekatos, Richard W. Mark, of counsel), for respondent-appellee.
Before KEARSE, WINTER and WALKER, Circuit Judges.
Petitioner Simon Vargas appeals the decision of the Board of Immigration Appeals ("BIA") dismissing his motion to reopen a denial of waiver of deportation. Because we find the BIA's decision arbitrary and capricious, we vacate the ruling and remand for further proceedings.
Since March 1970, when he arrived in the United States at the age of four, petitioner has lawfully resided in the United States as a permanent resident. In March 1986, petitioner was convicted of criminal possession of cocaine. In July 1986, the Immigration & Naturalization Service (hereinafter the "Agency") charged that petitioner was deportable based on the narcotics conviction and began deportation proceedings.
At his deportation hearing in 1987, petitioner conceded his deportability. He then applied for a waiver of deportation pursuant to section 212(c) of the Immigration & Nationality Act, codified at 8 U.S.C. Sec. 1182(c). In relevant part, that section provides:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General....
While Section 212(c) on its face covers only aliens seeking to return to their United States residence, both resident aliens and aliens seeking to return to the United States are eligible for relief under it. See Francis v. INS, 532 F.2d 268 (2d Cir.1976); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976).
In a decision dated March 22, 1988, Immigration Judge Patricia A. Rohan (the "IJ") In August, 1989, petitioner appealed the IJ's decision to the Board of Immigration Appeals. On November 30, 1989, the BIA dismissed the appeal. After finding petitioner eligible for Section 212(c) relief, the BIA stated that petitioner presented "outstanding equities," including strong family ties in the United States and no possibility of livelihood in the Dominican Republic. Nonetheless, persuaded by petitioner's criminal record and slim evidence of rehabilitation, the BIA affirmed the IJ's denial of relief and issued a final order of deportation.
found petitioner eligible for relief under Section 212(c). Although petitioner showed strong family ties, the IJ denied discretionary relief based on his criminal record and weak showing of rehabilitation. She ordered petitioner deported to the Dominican Republic, his country of origin.
In March 1990, petitioner moved to reopen the BIA's denial of relief under Section 212(c), intending to present new evidence concerning, among other things, his employment history, continued law-abiding conduct, independence from drugs, and family life, including the birth of a child. (Petitioner married the mother of his child on August 17, 1990.)
The BIA denied the motion to reopen on June 13, 1990. The BIA found that petitioner was no longer eligible for relief under Section 212(c) because the BIA's dismissal of petitioner's appeal on November 30, 1989 effectively terminated his lawful permanent resident status. In support of its decision, the BIA stated: "In Matter of Lok, 18 I & N Dec. 101 (BIA 1981), this Board held that the lawful permanent resident status of an alien ends upon the entry of a final administrative order of deportation, that is, when the [BIA] renders its decision in a case on appeal, or when the time allotted for appeal has expired."
Petitioner then filed this appeal.
We conduct a limited review of the BIA's denial of petitioner's motion to reopen. We seek only to determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 706(2); INS v. Abudu, 485 U.S. 94, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). In doing so, we must consider the statement of reasons justifying the decision to determine whether the path which the agency followed can be discerned, and whether the decision was reached " 'for an impermissible reason or [for] no reason at all.' " Doyle v. Brock, 821 F.2d 778, 782 (D.C.Cir.1987) (quoting Dunlop v. Bachowski, 421 U.S. 560, 573, 95 S.Ct. 1851, 1860, 44 L.Ed.2d 377 (1975)); see Securities & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947); Hudson Transit Lines, Inc. v. United States ICC, 765 F.2d 329, 336 (2d Cir.1985). "When an agency changes course, a reviewing court must be satisfied that the agency was aware of, and has given sound reasons for, the change, and that it has shown that the new rule is consistent with the agency's statutory duties." NLRB v. Indianapolis Mack Sales & Service, Inc., 802 F.2d 280, 284 (7th Cir.1986); see International Union, UAW v. NLRB, 802 F.2d 969 (7th Cir.1986).
With the foregoing principles in mind, we turn to the BIA's opinion in support of its denial of Vargas's motion. We first evaluate the stated justification for the decision. The BIA opinion contains no mention of statutory or regulatory provisions. Nor does it discuss reasons which might justify its decision. The sole support for the decision is a quoted phrase from Matter of Lok, 18 I & N Dec. 101, a BIA decision rendered in 1981.
Matter of Lok, however, is not an adequate basis for the BIA's decision. In that case, the BIA denied the application of a permanent resident alien for Section 212(c) relief because the alien had failed to accrue the required seven years of "lawful unrelinquished We affirmed Matter of Lok on narrow grounds. Lok v. INS, 681 F.2d 107 (2d Cir.1982). We did not expressly affirm the BIA's conclusion that Lok's permanent resident status ended with the "administratively final" ruling of deportability for purposes of counting the Section 212(c) seven-year requirement. Instead, we ruled that, for purposes of calculating the seven-year requirement, Lok's status as a permanent resident ended when he failed to appeal the Immigration Judge's finding of deportability. In so ruling, we also intimated that Lok's eligibility for Section 212(c) relief, once established, would survive a finding of deportability. Id. at 110. We stated that, after failing to appeal the deportability finding, "Lok's only defense to deportation was an appeal to the discretion of the Attorney General under Sec. 212(c)." Id.
domicile" and was therefore statutorily ineligible. Among other things, the BIA decided that an alien should not be permitted to accrue time towards the seven-year requirement after the entry of an enforceable final administrative order of deportation. The BIA defined such an order to have been issued "when the Board renders its decision in the case upon appeal or certification or, where no appeal to the Board is taken, when appeal is waived or the time allotted for appeal has expired." 18 I. & N. Dec. 101, at 105. The BIA justified its rule by reasoning that a rule which permitted aliens to continue accruing time during judicial appeals "would encourage spurious appeals ... made solely for the purpose of accumulating more time toward eligibility for section 212(c) relief." Id. at 106. In view of the limited scope of review on appeal and the ability of a Court of Appeals to reverse a BIA deportability finding and thus to restore an alien's lawful permanent residence status, the BIA found "no ultimate prejudice" to aliens from its rule. Id. at 107
Matter of Lok, therefore, stands only for the proposition that an alien cannot become eligible for discretionary relief through subsequent accrual of time towards the seven-year threshold, once he has conceded that he is deportable. Lok, 681 F.2d at 110. Without further reasoning or analysis, the BIA has extended Matter of Lok to terminate petitioner's clearly existing eligibility for Section 212(c) relief. This is inadequate justification for the decision. Petitioner resided in the United States fourteen years prior to running afoul of the law. At the time deportability proceedings began, he was indisputably eligible for Section 212(c) relief. The concern which motivated the creation of the rule in Matter of Lok --preventing an alien from manipulating deportability proceedings so as to acquire the seven years of domicile--is not present here. The BIA justified the decision with no other basis or explanation. We thus cannot conclude that the decision is the "product of reasoned decision-making." United States v. Garner, 767 F.2d 104, 106 (5th Cir.1985); e.g., Graphic Communications International Union Local 554 v. Salem-Gravure Division of World Color Press, 843 F.2d 1490, 1494 (D.C.Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989).
While this alone would merit vacatur, there are further grounds for our decision, which we consider below.
The BIA's decision denying petitioner's motion also effectively amends an existing regulation without notice or opportunity for comment. This supports our conclusion that the decision is arbitrary and capricious. 8 C.F.R. Sec. 3.2 provides that the BIA may hear motions to reconsider and reopen. Such motions may concern deportability and discretionary relief. Among other things, motions to reconsider and reopen may be based upon "circumstances which have arisen subsequent to the hearing."
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