Arias Chupina v. Holder ( 2009 )

08-0867-ag (L), 08-3394-ag (CON)
Arias Chupina v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
Argued: May 18, 2009 Decided: June 25, 2009
Docket Nos. 08-0867-ag (L), 08-3394-ag (CON)
_____________________________________________________________________________
JOSE ENRIQUE ARIAS CHUPINA,
Petitioner,
- v.-
ERIC H. HOLDER JR., United States Attorney General,
Respondent.*
_____________________________________________________________________________
Before: MINER, KATZMANN, and RAGGI, Circuit Judges.
By a decision dated January 24, 2008, the Board of Immigration Appeals (the “BIA”)
upheld the immigration judge’s denial of petitioner’s application for asylum as untimely filed and
remanded to the immigration judge for further consideration of petitioner’s applications for
withholding of removal and protection under the CAT. By a decision dated June 13, 2008, the
BIA denied reconsideration of its decision regarding asylum. Petitioner seeks review of both
decisions.
Petitions dismissed.
ANNE PILSBURY (Heather Yvonne Axford, on the
brief), Central American Legal Assistance,
Brooklyn, NY, for petitioner.
GREGORY M. KELCH (Gregory G. Katsas, Assistant
Attorney General, and James E. Grimes, Senior
Litigation Counsel, on the brief), United States
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H.
Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as the
respondent in this case.
1
Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, DC, for
respondent.
PER CURIAM :
Petitioner Jose Enrique Arias-Chupina (“Chupina”) petitions for review of decisions
entered by the Board of Immigration Appeals (the “BIA”) on January 24, 2008, and June 13,
2008.1 The BIA’s January 24, 2008 decision upheld the immigration judge’s denial of Chupina’s
asylum application as untimely filed and remanded the case to the immigration judge for further
consideration of Chupina’s eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)
and for protection under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85. See 8 C.F.R. § 1208.16(c) (implementing the CAT). The BIA’s June
13, 2008 decision denied reconsideration of its decision regarding asylum. In his petitions,
Chupina argues that the BIA’s decisions upholding the denial of his asylum application were in
error. Chupina’s applications for withholding of removal and protection under the CAT remain
pending with the immigration judge. For the reasons that follow, the petitions are dismissed
because there is no final order of removal over which we may assert jurisdiction in this case.
I. BACKGROUND
Chupina, a native and citizen of Guatemala, was admitted to the United States on or about
June 28, 2000, as a non-immigrant visitor for business with authorization to remain for a
temporary period to end not later than July 27, 2000. On August 22, 2001, more than a year after
his authorization to remain in the United States had expired, Chupina filed applications with the
former Immigration and Naturalization Service, now the Department of Homeland Security
(“DHS”), for asylum, withholding of removal, and protection under the CAT.
On December 18, 2002, Chupina was served with a Notice to Appear (the “NTA”), which
1
We hereby formally consolidate the petitions filed under docket numbers 08-0867-ag
and 08-3394-ag, designating 08-0867-ag as the lead petition. See 8 U.S.C. § 1252(b)(6).
2
charged him with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who remained in the
United States for a time longer than permitted. In a hearing before an immigration judge on
March 13, 2005, Chupina, through counsel, admitted to the factual allegations in the NTA and
conceded removability, relying entirely on his applications for asylum, withholding of removal,
and protection under the CAT to prevent his removal to Guatemala.
In support of his applications for CAT protection and relief from removal, Chupina
testified that he fled Guatemala because he feared persecution from the G-2, Guatemala’s
military intelligence agency, which had recruited him as an informant and had issued a
membership card to him. He also testified that he attempted to apply for asylum, withholding of
removal, and protection under the CAT at an earlier date, in April 2001, but that he did not file
his applications until August 2001 pursuant to the advice of a non-attorney who delayed their
submission.
In a written decision entered on September 14, 2005, the immigration judge denied
Chupina’s applications for asylum, withholding of removal, and protection under the CAT. The
immigration judge found, inter alia, that (1) Chupina’s asylum application was untimely because
it was filed more than one year after his arrival in the United States; (2) Chupina did not qualify
for any of the exceptions to the one-year deadline for filing an asylum application; (3) even if
Chupina’s asylum application were timely filed, he was ineligible for asylum because he was
subject to the persecutor bar for having persecuted others as a member of the G-2; and (4)
moreover, the persecutor bar rendered Chupina ineligible for withholding of removal under 8
U.S.C. § 1231(b)(3) and under the CAT.
Chupina appealed the immigration judge’s decision to the BIA. On January 24, 2008, the
BIA sustained in part and dismissed in part Chupina’s appeal. The BIA agreed with the
immigration judge that Chupina’s asylum application was untimely and that no exceptions to the
filing deadline applied. Specifically, the BIA rejected Chupina’s claim that the advice given to
him by his non-attorney representative constituted ineffective assistance of counsel and therefore
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that “exceptional circumstances” excused him from the untimely filing. The BIA stated that
Chupina could not raise an ineffective assistance of counsel claim because he had failed to satisfy
the pertinent aspects of the procedural prerequisites for bringing such a claim under Matter of
Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), which require:
(1) an affidavit setting forth in detail the agreement with former counsel
concerning what action would be taken and what counsel did or did not represent
in this regard; (2) proof that the petitioner notified former counsel of the
allegations of ineffective assistance and allowed counsel an opportunity to
respond; and (3) if a violation of ethical or legal responsibilities is claimed, a
statement as to whether the petitioner filed a complaint with any disciplinary
authority regarding counsel’s conduct and, if a complaint was not filed, an
explanation for not doing so.
Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007) (quoting Twum v. INS, 411 F.3d
54, 59 (2d Cir. 2005) (alterations omitted). The BIA also noted that, because Chupina failed to
satisfy the applicable Lozada requirements, “[t]he record . . . does not contain sufficient evidence
to establish that the late filing of [Chupina’s] asylum application was due to actions or inaction of
his [non-attorney] representative rather than to failures on his own part.”
With respect to Chupina’s applications for withholding of removal and protection under
the CAT, however, the BIA concluded that the immigration judge erred in applying the
persecutor bar to Chupina. The BIA observed that Chupina was not “truly inducted into the [G-
2] organization,” that he “never received any training or pay,” and that he “tried not to fulfill
[his] role [as an informant for the G-2].” Accordingly, in regard to Chupina’s applications for
CAT protection and withholding of removal, the BIA remanded the case to the immigration
judge “to allow the parties to supplement and update the record and to allow the Immigration
Judge to make a new determination as to whether [Chupina] is eligible for withholding of
removal . . . [and protection under the CAT].”
On February 25, 2008, Chupina petitioned for review of the BIA’s decision upholding the
immigration judge’s denial of his asylum application. At around the same time, Chupina also
filed a motion to reconsider with the BIA, arguing that it erroneously found that his claim of
ineffective assistance of counsel by a non-attorney did not constitute exceptional circumstances
4
excusing the untimely filing of his asylum application. Specifically, Chupina argued that the BIA
erred by applying the Lozada requirements, which apply to claims of ineffective assistance of
counsel, to his claims of ineffective assistance by a non-attorney.
In a decision dated June 13, 2008, the BIA denied Chupina’s motion to reconsider,
affirming its earlier ruling that Chupina failed to provide sufficient evidence to support his
ineffective assistance claim. The BIA noted that requiring Chupina to comply with the
applicable Lozada requirements for raising an ineffective assistance of counsel claim where his
representative was a non-attorney did not impose an “undue burden” on Chupina. The BIA also
noted that, aside from Chupina’s failure to satisfy the Lozada requirements, he also failed to
allege sufficient facts to establish that his claim of ineffective assistance of counsel constituted
“exceptional circumstances” to excuse the untimely filing of his asylum application. On July 11,
2008, Chupina petitioned for review of the BIA’s decision denying his motion to reconsider.
In his petitions for review, Chupina argues that the BIA erred in concluding that, because
of his failure to fulfill the Lozada requirements, Chupina could not establish exceptional
circumstances based on his claim of ineffective assistance such as would excuse his failure to
comply with the one-year filing deadline for asylum applications. In this connection, Chupina
purports to raise questions of law and constitutional claims, namely, that the BIA violated his due
process rights and committed legal error when it required that the Lozada submissions be
satisfied for his claim of ineffective assistance by a “non-attorney.” The government moves to
dismiss the petition for lack of jurisdiction. It principally argues that there does not yet exist a
“final” order of removal — a necessary predicate for this Court’s jurisdiction to review orders of
removal — because Chupina’s applications for withholding of removal and protection under the
CAT remain pending before the immigration judge.2
2
The government alternatively argues that 8 U.S.C. § 1158(a)(3) deprives this Court of
jurisdiction to review the agency’s determination that Chupina’s asylum application was
untimely. We need not, however, resolve that challenge because we base our dismissal on lack
of a final order of removal.
5
II. ANALYSIS
This Court’s jurisdiction to review orders of removal is limited to review of “final
order[s] of removal.” See 8 U.S.C. § 1252(a)(1); see also, e.g., Alibasic v. Mukasey, 547 F.3d
78, 82 (2d Cir. 2008) (“This Court has jurisdiction to review only petitions for review of final
orders of removal.” (internal quotation marks and alteration omitted)); Shi Liang Lin v. U.S.
Dep’t of Justice, 494 F.3d 296, 315 (2d Cir. 2007) (en banc) (dismissing petition for lack of
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) because the court of appeals can “review only final
orders of removal”). An order of removal is “final” upon the earlier of the BIA’s affirmance of
the immigration judge’s order of removal or the expiration of the time to appeal the immigration
judge’s order of removal to the BIA. 8 U.S.C. § 1101(a)(47)(B)(i), (ii).
Here, the BIA affirmed the immigration judge’s denial of Chupina’s asylum application
but remanded the case to the immigration judge “to allow the parties to supplement and update
the record and to allow the Immigration Judge to make a new determination as to whether
[Chupina] is eligible for withholding of removal . . . [and protection under the CAT].” Thus,
instead of affirming the immigration judge’s order of removal within the meaning of
§ 1101(a)(47)(B)(i), the BIA in this case affirmed only the immigration judge’s ruling as to
Chupina’s asylum application and returned jurisdiction to the immigration judge for further
proceedings on Chupina’s remaining applications for CAT protection and withholding of
removal. See Matter of Patel, 16 I. & N. Dec. 600, 601 (B.I.A. 1978) (stating that where the BIA
remands to the immigration judge for further proceedings, “it divests itself of jurisdiction of that
case unless jurisdiction is expressly retained”); id. (stating that the BIA may qualify or limit the
issues on remand). Significantly, Chupina’s remanded applications seek mandatory forms of
relief and protection from removal, and, if granted, effectively would result in the cancellation of
any order removing Chupina to Guatemala. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(c).
Thus, having remanded the case to the immigration judge for consideration of applications which
directly affect whether Chupina, who conceded removability, can in fact be removed to
6
Guatemala, the BIA’s decision cannot constitute a “final order of removal.”
This result is consistent with Foti v. INS, 375 U.S. 217 (1963), where the Supreme Court,
construing an earlier version of the immigration statutes, held that the denial of discretionary
relief from removal was “antecedent to and a constituent part of the ‘final order of deportation.’”
Id. at 226. Although Chupina’s remanded applications for CAT protection and withholding of
removal do not seek discretionary forms of relief, the Supreme Court’s reasoning in Foti is
equally applicable here. In Foti, the Supreme Court explained that “all determinations made
during and incident to the administrative proceedings” were included within an appellate court’s
jurisdiction and that review of the finding of removability and the denial of relief should be
reviewed “by the same court at the same time.” Id. at 227, 229. Thus, because Chupina’s
pending applications directly affect whether he may be removed to Guatemala, Foti strongly
counsels that Chupina’s order of removal is not final until those applications have been resolved
by the agency. Cf. Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (noting that a final decision is
“the ‘consummation’ of the agency’s decisionmaking process” and must “not be of [an] . . .
interlocutory nature” (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S.
103, 113 (1948))).3
Nonetheless, Chupina argues that review of his petitions at this time is proper because
there may not be a “final order of removal” upon the agency’s adjudication of his applications for
withholding of removal and protection under the CAT. Specifically, while Chupina concedes
that an award of withholding of removal requires entry of an underlying “order of removal,” see
3
Insofar as we held in Alibasic that “a BIA order denying relief from removal and
remanding for the sole purpose of considering voluntary departure is a final order of removal,”
547 F.3d at 83–84 (emphasis added), that decision does not conflict with Foti nor does it govern
this case. The relief of voluntary departure does not affect the alien’s removability from the
United States; rather, it is “a discretionary form of relief that allows certain favored aliens —
either before the conclusion of removal proceedings or after being found deportable — to leave
the country willingly [in lieu of removal].” Dada v. Mukasey, 128 S. Ct. 2307, 2312 (2008); see
also 8 U.S.C. § 1229c(b)(1). Accordingly, where, as here, the BIA has remanded the record for
further proceedings to determine Chupina’s eligibility for withholding of removal and protection
under the CAT — applications which directly affect his removability to Guatemala — Alibasic is
inapposite.
7
Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 433–34 (B.I.A. 2008), he contends that an award of
CAT protection does not. He therefore argues that, despite the guarantee of an “order of
removal” with respect to his withholding-of-removal claim, in the event he is granted CAT
protection, there would still be no “order of removal” in his case. Without an order of removal,
Chupina reasons, there can never be a “final” order of removal upon which this Court can
exercise jurisdiction. We need not attempt to reconcile the logical difficulties posed by
Chupina’s hypothetical because we reject the premise that an “order of removal” does not
underlie a grant of CAT protection.
The term “order of deportation,” which is synonymous with the term “order of removal,”
see Rhodes-Bradford v. Keisler, 507 F.3d 77, 79 (2d Cir. 2007); Phong Thanh Nguyen v.
Chertoff, 501 F.3d 107, 109 n.4 (2d Cir. 2007); Thapa v. Gonzales, 460 F.3d 323, 333 n.3 (2d
Cir. 2006), is defined by statute as either (1) a determination that the “alien is deportable” from
the United States or (2) an order “ordering deportation” of the alien from the United States. See
8 U.S.C. § 1101(a)(47)(A); Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir. 2006) (per curiam)
(“[T]he statutory requirement of an order of removal is satisfied when . . . the [immigration
judge] either orders removal or concludes that an alien is removable.”). If Chupina is granted
withholding of removal only, the BIA requires the grant of that relief to include an explicit order
of removal. See Matter of I-S- & C-S-, 24 I. & N. Dec. at 434. Thus, the grant of withholding of
removal would establish an “order of removal” because, for one reason, such grant requires the
immigration judge to “order[] removal.” If Chupina is granted protection under the CAT, then
the grant of that protection necessarily requires the immigration judge to determine whether
Chupina is removable from the United States. See 8 C.F.R. § 1208.16(a), (c) (providing
protection from removal to a country where alien would more likely than not be subject to
torture); see also 8 C.F.R. § 1208.17(a) (providing deferral of removal to eligible aien who “has
been ordered removed” (emphasis added)). Thus, the grant of protection under the CAT would
establish an “order of removal” because such a grant requires a determination by the immigration
8
judge that the alien is removable. Accordingly, regardless of whether Chupina is granted only
withholding of removal, only protection under the CAT, or granted or denied both withholding
and CAT protection, there will be an “order of removal” that will eventually become final and
subject to this Court’s jurisdiction for review.
Incidentally, we note that our decision does not preclude Chupina from filing a petition
for review of the agency’s denial of his asylum application, and of the BIA’s reconsideration of
that decision, once the agency has fully adjudicated his remaining applications for withholding of
removal and protection under the CAT. Furthermore, Chupina need not appeal to the BIA the
denial or grant of his applications for withholding of removal and protection under the CAT in
order to preserve his exhausted claim that the denial of his asylum application was in error.4 See
8 U.S.C. § 1252(d)(1). Rather, in the event that no appeal is made to the BIA by either Chupina
or the government following the adjudication of Chupina’s pending applications, Chupina may
challenge the denial of his asylum application within thirty days after the immigration judge’s
decision regarding his applications for withholding of removal and protection under the CAT
becomes final, see id. § 1252(b)(1) (“The petition for review must be filed not later than 30 days
after the date of the final order of removal.”); see also 8 C.F.R. § 1003.39 (“Except when
certified to the [BIA], the decision of the Immigration Judge becomes final upon waiver of
appeal or upon the expiration of the time to appeal [to the BIA] if no appeal is taken whichever
[sic] occurs first.”), assuming, of course, that Chupina’s petition indeed raises a colorable
constitutional claim or question of law to overcome 8 U.S.C. § 1158(a)(3)’s jurisdictional bar,
see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330–32 (2d Cir. 2006).
III. CONCLUSION
For the foregoing reasons, the government’s motion to dismiss is GRANTED and the
4
Of course, in the event the immigration judge denies either withholding of removal or
protection under the CAT, or both, Chupina must first exhaust his remedies with the BIA with
respect to those two forms of relief if he wishes to challenge those denials in a petition for
review. See 8 U.S.C. § 1252(d)(1).
9
petitions for review are DISMISSED for lack of jurisdiction. The government’s motion to stay
briefing and Chupina’s motion to proceed in forma pauperis are DENIED as moot.
10