Andrzej Porwisz v. Attorney General United States , 625 F. App'x 49 ( 2015 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 14-4281
    ___________
    ANDRZEJ PORWISZ,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ____________________________________
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    (Agency No. A200-441-504)
    Immigration Judge: Honorable Alberto J. Riefkohl
    ____________________________________
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    May 19, 2015
    Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.
    (Opinion filed: August 31, 2015)
    ________________
    OPINION
    _______________
    
    This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
    constitute binding precedent.
    1
    SLOVITER, Circuit Judge.
    Petitioner Andrzej Porwisz (“Petitioner”) admittedly overstayed his nonimmigrant
    visa, and in September of 2010, the Department of Homeland Security (“DHS”) initiated
    removal proceedings against him. An Immigration Judge (“IJ”) ultimately granted
    Petitioner’s request for voluntary departure and alternatively ordered his removal if he
    did not comply with the terms of the grant of voluntary departure. Petitioner appealed the
    voluntary departure order. The Board of Immigration Appeals (“BIA”) dismissed his
    appeal, and he petitioned for review by this court. Petitioner contends that the BIA erred
    in failing to address his arguments regarding section 212(a)(9)(B) of the Immigration and
    Nationality Act (“INA”), 8 U.S.C. § 1182(a)(9)(B)(i)(II), which provides, in pertinent
    part, that “[a]ny alien . . . who . . . has been unlawfully present in the United States for
    one year or more, and who again seeks admission within 10 years of the date of such
    alien’s departure or removal from the United States, is inadmissible.” Petitioner argues
    that that he is not subject to this provision and that the DHS’s interpretation of this
    provision as barring his readmission for 10 years is incorrect. We conclude that
    Porwisz’s petition for review is moot and is not ripe for review, and we will dismiss the
    petition for review.1
    I.
    Petitioner is a native of Poland who entered the United States on approximately
    August 24, 2002, on a nonimmigrant visitor visa, which authorized him to remain in the
    1
    The BIA had jurisdiction over Petitioner’s appeal pursuant to 8 C.F.R. §§ 1003.1(b)(3)
    and 1240.15.
    2
    United States for a temporary period of time not to extend beyond February 23, 2003.
    Petitioner did not depart in February 2003.
    On October 11, 2007, Edison Machine LLP filed an application for a permanent
    employment certification on Petitioner’s behalf, and the U.S. Department of Labor
    approved this application on December 3, 2007. On approximately April 29, 2008,
    Edison Machine LLP also filed an I-140 immigrant petition for an alien worker, which
    was approved on December 11, 2008.
    In January, 2010, Petitioner filed an I-485 application for adjustment of status
    pursuant to section 245(i) of the INA, 8 U.S.C. § 1255(i), with the DHS. The DHS
    denied this application because his documents in support of that application did not
    demonstrate “that [he] maintained lawful nonimmigrant status beginning on February 23,
    2003 and ending on January 6, 2010.” A.R. at 112-13. Thereafter, on September 10,
    2010, the DHS commenced removal proceedings against Petitioner pursuant to section
    237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B).
    Petitioner, with the representation of an attorney, appeared before an IJ three times
    between November 30, 2010, and February 14, 2013. During these hearings, Petitioner
    conceded removability and sought voluntary departure. However, Petitioner also
    renewed his application for adjustment of status despite his recognition that he was not
    eligible for such adjustment. Petitioner openly admitted that the purpose of this
    application was to create an appealable issue so that he could challenge at the appellate
    level the DHS’s interpretation of the “unlawful presence” bar in
    3
    8 U.S.C. § 1182(a)(9)(B)(i)(II) as applying to those departing pursuant to voluntary
    departure orders.2 Petitioner did not request the IJ to address his arguments regarding the
    inapplicability of § 1182(a)(9)(B)(i)(II) to voluntary departure orders in the first instance.
    During the final hearing on February 14, 2013, the IJ issued an oral ruling granting the
    application for voluntary departure, giving Petitioner until April 15, 2013 to depart and
    imposing an alternative removal order to Poland (in the event that Petitioner did not
    comply with the voluntary departure order). The IJ did not address the adjustment of
    status issue any further, aside from marking that application as “withdrawn” on the order
    sheet. The IJ noted that Petitioner reserved an appeal.
    On March 7, 2013, Petitioner filed his appeal to the BIA. In his appeal, Petitioner
    did not address the adjustment of status issue and instead challenged DHS’s interpretation
    of the “unlawful presence” bar of § 1182(a)(9)(B)(i)(II). The BIA dismissed the appeal
    on October 6, 2014. The BIA reasoned that while the IJ “did not fully address
    [Petitioner’s] renewed application for adjustment,” the BIA had “no reason to reverse
    [the IJ’s] decision or remand for further proceedings, since [Petitioner] does not appear to
    challenge the DHS’ denial of his application for adjustment on appeal.” A.R. at 3. As to
    Petitioner’s arguments concerning § 1182(a)(9)(B)(i)(II), the BIA stated that it “need not
    address [these] arguments concerning admissibility with respect to any future application
    for re-admission, as the issue is not properly before us.” 
    Id. However, the
    BIA noted
    2
    Petitioner sought review of an issue relating to voluntary departure, but voluntary
    departure orders are not appealable. Thus, to pursue his appeal, Petitioner sought to use
    the denial of his adjustment of status application as a vehicle for appealing the voluntary
    departure readmission issue.
    4
    that it had previously stated in Matter of Arrabally, 25 I & N Dec. 771, 774 (BIA 2012),
    that the inadmissibility provisions of § 1182(a)(9)(B)(i)(II) applied to aliens who depart
    under a grant of voluntary departure. For these reasons, the BIA dismissed the appeal.
    Petitioner filed a timely petition for review.
    II.
    We must consider whether we can address Petitioner’s arguments regarding 8
    U.S.C. § 1182(a)(9)(B)(i)(II) despite his failure to leave the United States in compliance
    with his voluntary departure order. The BIA warned Petitioner that pursuant to 8 C.F.R.
    § 1240.26(i), a grant of voluntary departure terminates upon an alien’s filing of a petition
    for review before departing the United States.3 The United States Attorney General
    (“Respondent”), argues that the issues raised in the instant petition for review, which
    consider the effects of a voluntary departure order, are moot because Petitioner’s filing of
    a petition for review while remaining in the United States terminated his voluntary
    departure order. Respondent states, “because Petitioner no longer has the option of
    3
    8 C.F.R. § 1240.26(i) provides:
    Effect of filing a petition for review. If, prior to departing the United States,
    the alien files a petition for review pursuant to section 242 of the Act (8
    U.S.C. 1252) or any other judicial challenge to the administratively final
    order, any grant of voluntary departure shall terminate automatically upon
    the filing of the petition or other judicial challenge and the alternate order
    of removal entered pursuant to paragraph (d) of this section shall
    immediately take effect, except that an alien granted the privilege of
    voluntary departure under 8 C.F.R. 1240.26(c) will not be deemed to have
    departed under an order of removal if the alien departs the United States no
    later than 30 days following the filing of a petition for review, provides to
    DHS such evidence of his or her departure as the ICE Field Office Director
    may require, and provides evidence DHS deems sufficient that he or she
    remains outside of the United States. . . .
    5
    leaving the United States in accordance with the terms of his voluntary departure order,
    he has no personal stake in this Court’s resolution of th[is] issue.” Respondent’s Br. at
    12-13. Respondent further contends that the BIA properly declined to consider the issue
    raised in the petition regarding the applicability of § 1182(a)(9)(B)(i)(II) because the
    issue was not properly before it and the BIA’s policy is to avoid issuing advisory
    opinions. See BIA Practice Manual § 1.4(d)(iii), available at
    http://www.justice.gov/eoir/board-immigration-appeals-2.
    Petitioner responds that the BIA should not have declined to address his arguments
    based on his failure to leave the country and apply for readmission because, had he done
    so, the issue would not have been reviewable as a result of 8 C.F.R. § 1003.4 and the
    doctrine of consular nonreviewability. See Kleindienst v. Mandel, 
    408 U.S. 753
    , 769-70
    (1972) (stating that where Congress has delegated the exercise of its power to make rules
    for the exclusion of aliens to the Executive, and “the Executive exercises this power
    negatively on the basis of a facially legitimate and bona fide reason, the courts will [not]
    look behind the exercise of that discretion”). Pursuant to 8 C.F.R. § 1003.4:
    Departure from the United States of a person who is the subject of
    deportation or removal proceedings . . . subsequent to the taking of an
    appeal, but prior to a decision thereon, shall constitute a withdrawal of the
    appeal, and the initial decision in the case shall be final to the same extent
    as though no appeal had been taken.
    Thus, if Petitioner left the United States in compliance with his voluntary departure order,
    his appeal would be deemed withdrawn. Petitioner argues that we should consider his
    petition for review despite the fact that his petition appears to be moot and not ripe for
    review, based on the procedural difficulties described above.
    6
    If the issues in a case “have become moot, i.e., are no longer ‘live,’ the case will
    be moot and therefore nonjusticiable.” Pennsylvania v. Lockheed Martin Corp., 
    681 F.3d 503
    , 506 (3d Cir. 2012). The case or controversy requirement of Article III of the
    Constitution requires “‘(1) a legal controversy that is real and not hypothetical, (2) a legal
    controversy that affects an individual in a concrete manner so as to provide the factual
    predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently
    adverse parties so as to sharpen the issues for judicial resolution.’” 
    Id. at 506-07
    (quoting
    In re Surrick, 
    338 F.3d 224
    , 229 (3d Cir. 2003)).
    The Supreme Court has instructed that the “basic rationale [of the ripeness
    doctrine] is to prevent the courts, through avoidance of premature adjudication, from
    entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148 (1967). We must consider the “fitness of the issues for judicial decision and the
    hardship to the parties of withholding court consideration.” 
    Id. at 149.
    A court making a
    “fitness for review” determination must “consider[] whether the issues presented are
    purely legal, and the degree to which the challenged action is final. A court must
    consider whether the claims involve uncertain and contingent events that may not occur
    as anticipated or may not occur at all.” Comite’ De Apoyo A Los Trabajadores Agricolas
    v. Perez, 
    774 F.3d 173
    , 183 (3d Cir. 2014).
    We agree with Respondent that, because of the operation of 8 C.F.R. § 1240.26(i),
    the issue of whether § 1182(a)(9)(B)(i)(II) applies to voluntary departure orders is moot
    as to Petitioner. We also agree with the BIA’s determination that this issue was not
    properly before it. The Petitioner did not voluntarily depart and apply for readmission, so
    7
    therefore, the issue is not ripe for us to consider whether the ten-year bar for readmission
    under § 1182(a)(9)(B)(i)(II) applies to aliens that voluntarily depart from the United
    States. Accordingly, we must dismiss Petitioner’s petition for review.4
    III.
    For these foregoing reasons, we will dismiss the petition for review.
    4
    We fully understand the procedural difficulties that an alien that voluntarily departs and
    wishes to challenge the applicability of 8 U.S.C. § 1182(a)(9)(B)(i)(II) will face, but in
    order for this court to exercise jurisdiction there must be a live controversy that is ripe for
    review. No such controversy is present in this case.
    8
    

Document Info

Docket Number: 14-4281

Citation Numbers: 625 F. App'x 49

Judges: Fuentes, Greenaway, Sloviter

Filed Date: 8/31/2015

Precedential Status: Non-Precedential

Modified Date: 10/19/2024