Escobar v. Attorney General of the United States ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-28-2006
Escobar v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2171
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2171
REINALDO CRUZ ESCOBAR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
ANDREA QUARANTILLO, DISTRICT DIRECTOR, NEWARK, NEW JERSEY,
U.S. CITIZENSHIP & IMMIGRATION SERVICES,
Respondents
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A29-242-430)
(Immigration Judge: Honorable William Strasser)
Argued: February 13, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges
(Filed: June 28, 2006)
EDMUNDO D. LIJO, ESQUIRE (ARGUED)
Blackwell, Igbanugo, Engen & Saffold
3601 West 76th Street, Suite 250
Minneapolis, Minnesota 55435
Attorney for Petitioner
SUSAN K. HOUSER, ESQUIRE (ARGUED)
CARL H. McINTYRE, JR., ESQUIRE
MARION E. GUYTON, ESQUIRE
RICHARD M. EVANS, ESQUIRE
Office of Immigration Litigation
United States Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondents
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Reinaldo Cruz Escobar petitions for review of the BIA’s March 15,
2005 order denying his motion to reconsider the BIA’s January 13, 2004 decision. In that
order, the BIA affirmed the IJ’s denial of Escobar’s motion to reopen his deportation
proceedings. We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252.
We review the BIA’s denial of a motion to reconsider for abuse of discretion. Borges v.
Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). For the reasons set forth, we will grant the
petition.
Because we write for the parties, we will set forth only those facts necessary for
our analysis. If an applicant for suspension of deportation or for special rule cancellation
of removal under the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”) has an asylum application pending before the Bureau of Citizenship and
2
Immigration Services,1 the Bureau of Citizenship and Immigration Services has initial
jurisdiction over the NACARA application, unless the applicant (1) has a final order of
deportation, 8 C.F.R. § 1003.43, or (2) is currently in immigration proceedings, 8 C.F.R.
§ 240.62(b). 8 C.F.R. § 240.62(a); see Suspension of Deportation and Special Rule
Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former
Soviet Bloc Countries, 64 Fed. Reg. 27856 (May 21, 1999). The record demonstrates
Escobar filed an asylum application with the Bureau of Citizenship and Immigration
Services on November 14, 2004. Nevertheless, the BIA held the Immigration Court had
jurisdiction over Escobar’s NACARA application. Because it also held Escobar’s motion
to reopen was untimely, the BIA did not reach the merits of Escobar’s NACARA
application.
Respondent contends the Immigration Court had jurisdiction over Escobar’s
NACARA application because he was subject to a final order of deportation. In
December 1990, an IJ issued an order of deportation against Escobar and granted him
alternative voluntary departure until March 18, 1991. Because Escobar did not
voluntarily depart, his deportation order became final on March 18, 1991. However, in
December 1997, Escobar left the United States under a grant of advance parole, and was
paroled back into the United States on January 27, 1998.
1
As of March 1, 2003, the functions of the Immigration and Naturalization Service
were assumed by the Bureau of Citizenship and Immigration Services. Soltane v. U.S.
Dept. of Justice, 381 F.3d 143, 145 n.1 (3d Cir. 2004).
3
Under 8 U.S.C. § 1101(g), a person who “has left the United States” while under a
final order of deportation or removal “is considered to have been deported or removed in
pursuance of law.” See also 8 C.F.R § 1241.7 (“Any alien who has departed from the
United States while an order of deportation or removal is outstanding shall be considered
to have been deported, excluded and deported, or removed . . . .”). Accordingly, when
Escobar left the United States in 1997, he “executed” his deportation order, his
immigration proceedings terminated, and he was no longer subject to an order of
deportation.2 See Stone v. INS, 514 U.S. 386, 398 (1995) (“Deportation orders are
self-executing orders, not dependent upon judicial enforcement.”); Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (“Once Navarro was deported, therefore, his
removal proceedings were completed and final.”).
Respondent contends Escobar’s deportation order could not have been executed
because Escobar enjoyed Temporary Protected Status at the time of his departure. But
Escobar’s Temporary Protected Status ended on July 1, 1992. Immigration Act of 1990,
Pub. L. No. 101-649, § 303(a)(2), 104 Stat 4978, 5036, reprinted in 8 U.S.C. § 1254a
(notes). At that time, the Attorney General began placing Salvadoreans in Deferred
Enforced Departure. See Deferral of Enforced Departure for Salvadorans, 57 Fed. Reg.
28700, 28701 (June 26, 1992). Escobar did not regain Temporary Protected Status until
2
Respondent does not contend this rule is inapplicable to persons who leave the United
States under a grant of advance parole.
4
March 9, 2001. See Designation of El Salvador Under Temporary Protected Status
Program, 66 Fed. Reg. 14214, 14215 (March 9, 2001).
Because Escobar did not have a final order of deportation pending against him, he
was not required to file a motion to reopen with the Immigration Court, and the Bureau of
Citizenship and Immigration Services — not the Immigration Court — had jurisdiction
over his NACARA application. We will grant the petition for review and remand to the
BIA with directions to refer Escobar’s NACARA application to the Bureau of Citizenship
and Immigration Services for adjudication.3
3
Pursuant to Respondent’s request, we held the case in abeyance for 90 days. On May
27, 2006, Escobar and Respondent informed the Court that the Bureau of Citizenship and
Immigration Services has received a NACARA application from Escobar and, after an
FBI name check, “should be able to issue a final decision” on that application. (Pilotti
Decl. ¶ 12.) The parties have requested that this case be held in abeyance for another 90
days. The request is denied. At this time, we grant the relief Escobar requests — a full
review of his NACARA application by the Bureau of Citizenship and Immigration
Services.
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