Vakker v. Att'y Gen'l (3d Cir. 3/14/08)

STAPLETON Sloviter Smith

The 3d cir held that the "final order" for purposes of appeal was the IJ decision after BIA remand for record checks; which is inconsistent with another 3d Cir decision issued on the same day, and with other circuits to consider the question.  On merits, where the Petitioner was a parolee with no regulatory right to renew his AOS application before the IJ, and where USCIS had already denied AOS, there was no error where Board refused to remand to IJ for AOS. 

http://www.ca3.uscourts.gov/opinarch/061949p.pdf

Procedure: Parolee applied for AOS before USCIS - denied - tried to renew it before IJ, also sought Withholding - granted withholding by IJ - DHS appealed to BIA - during BIA appeal, 3d Cir decided Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005), Petitioner moved for remand.  BIA found him ineligible to adjust before IJ, denied mtn - but remanded for background checks.  Petitioner filed PfR within 30 days of IJ decision on remand, but not within 30 days of BIA decision.

1.  Govt argued that PfR was filed too late, because not filed within 30 days of BIA decision denying remand - CtApp focused on regulations, which make the IJ's decision 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.

2.  While Mtns to Reopen, Reconsider, etc., are justiciable separate and apart from a final removal order, Mtns to Remand are not so treated.  Because it was consolidated by the Board with the case-in-chief, will not be considered final, apart from that.

   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. * * * 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 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. The most sensible interpretation of 8 U.S.C. § 1252(b)(1) in this case is that the consolidated proceedings became “final” at the same time.

[NOTE - this seems quite inconsistent with another 3d cir decision issued on the same day, Yusupov v. Att'l Gen'l, where the 3d cir permitted a direct appeal from a BIA where it was remanded for records checks. A more logical finding would perhaps be that they took their appeal based on circuit precedent, and shouldn't be punished for that reliance.]

3.  The Petitioner was a parolee at the time he applied for AOS - he had not applied before leaving on advance parole - so the regulations gave him no right to renew before an IJ. 

   Petitioner was a “paroled” alien seeking to renew a previously denied application, and he does not argue that the exception specified in § 1245.2(a)(1)(i) and (ii) applies to him. * * * Vakker points to no reason why, given the plain language of § 1245.2(a)(1), he would have been eligible to renew his application in his removal proceedings before the IJ. Therefore, the BIA’s decision to deny Vakker’s motion to remand was not in error. * * *

   [P]etitioner argues that “pursuant to the interim rules, the removal proceedings cannot be concluded without a determination from the agency regarding [his] application.” Petitioner’s Br. at 27. He offers no support for that argument and no explanation for why it is consistent with § 1245.2(a)(1)(ii).

4.  The withholding grant, which may put him outside of removal proceedings, does not change anything - notes, though, that he might be eligible to adjust in some other way. 

   Petitioner further emphasizes that he is no longer in removal proceedings because a final order has issued in his proceedings. However, he was in removal proceedings both when he filed his motion with the BIA, and when the BIA denied it. Furthermore, petitioner seeks to have his claim remanded to the IJ; if he is no longer in removal proceedings, under the interim regulations the IJ plainly lacks jurisdiction to hear the claim. 8 C.F.R. § 245.2(a)(1) (“USCIS has jurisdiction to adjudicate an application for adjustment of status filed by an alien, unless the Immigration Judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).”); 8 C.F.R. § 1245.2(a)(1) (see supra). Therefore, petitioner has offered no argument why the new regulations would better aid his cause than the version in force at the time the BIA decided his motion. We express no opinion regarding whether Vakker might be entitled to renew his application in another manner, but the BIA did not err when it denied his motion to remand his proceedings in order to renew his application before the IJ.

Atty: Sandra Green, York, PA

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