Orichitch, Viktoria v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1109
VIKTORIA B. ORICHITCH,
Petitioner,
v.
ALBERTO R. GONZALES,1
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A75-259-365
____________
ARGUED JANUARY 6, 2005—DECIDED AUGUST 31, 2005
____________
Before MANION, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Petitioner Viktoria Orichitch,
a native and citizen of Ukraine, appeals a final order of
removal issued by the Board of Immigration Appeals (BIA),
affirming an IJ’s refusal to consider her application for
adjustment of status. The BIA affirmed the denial based on
a statutory bar triggered by the petitioner’s failure to leave
the country prior to a departure date set by a previously
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we have substituted the current Attorney General of the
United States, Alberto R. Gonzales, for his predecessor as the
named respondent.
2 No. 04-1109
issued voluntary departure order. Because we find that an
intermediate decision by the BIA to reopen Orichitch’s
removal proceedings served to vacate that preexisting
voluntary departure order, and with it the preclusive effect
of the relevant statutes based thereon, we grant her
petition for review and remand her case for proper consider-
ation of her adjustment of status application.
I. BACKGROUND
Orichitch was admitted to the United States as a lawful
non-immigrant visitor in June 1996 and submitted an
application for asylum, but it was denied and her case
was referred to an immigration judge (IJ).
Having remained in the U.S. without authorization
beyond the time period designated in her visa, Orichitch
received a Notice to Appear from the Immigration and
Naturalization Service (a department since reorganized
under the auspices of the Department of Homeland Security
(hereinafter, “DHS,” “Immigration Services,” or “Service”))
on November 26, 1997, charging her as removable pursuant
to Section 237(a)(1)(B) of the Immigration and Nationality
Act (INA) (codified at 8 U.S.C. § 1227(a)(1)(B)). On March
7, 1998, before her first IJ hearing, Orichitch married Brian
Brown, a U.S. citizen, who on August 6, 1998 filed an I-130
immigrant visa petition on his wife’s behalf, seeking to
classify her as an immediate relative and immune from visa
numerical limitations.
Petitioner’s first hearing before the IJ on the removal
charges took place on February 10, 1999. The I-130 visa
petition, which at that time was before a different immigra-
tion officer within Immigration Services, was not a subject
of this hearing. Pinning all her hopes on the I-130 visa
petition, Orichitch chose not to proceed with her application
for asylum at that hearing, thereby waiving the application
altogether. The IJ found her removable as charged and
No. 04-1109 3
granted her the only relief available to her at that
time—voluntary departure. Pursuant to the IJ’s decision,
Orichitch was to depart voluntarily by April 12, 1999. The
IJ specifically warned the petitioner that if she remained in
the U.S. beyond the authorized date for voluntary departure
that she would be ineligible for certain forms of relief from
removal, including adjustment of status, for ten years from
the date of scheduled departure.
At this point, Orichitch found herself in a race with the
clock. With a hard date for voluntary departure now
looming, Orichitch could only hope that her I-130 applica-
tion, which at that time was winding its way through
different bureaucratic channels within the immigra-
tion services, would be adjudicated before she was re-
quired to leave. Despite Orichitch’s attorney’s repeated
requests for prompt adjudication, and promises from
the attendant immigration officer to provide the same,
the application meandered though the process. So
drawn out was the process that Orichitch had to request an
extension of her voluntary departure date. Her request was
granted on April 8, 1999, extending her date for voluntary
departure to June 12, 1999.
Orichitch’s I-130 visa petition was finally approved on
May 13, 1999—almost a full month before her extended
voluntary departure date. With the bona fides of her
marriage confirmed, Orichitch became immediately eligi-
ble for adjustment of status under INA § 245 (codified at 8
U.S.C. § 1255). However, to secure such adjustment,
the petitioner had to persuade the immigration court
to reopen her case. Toward that end, Orichitch began to
work with then amenable Immigration Service officials
toward filing a Joint Motion to Reopen. As a result, on June
7, 1999, the petitioner filed a joint motion with District
Counsel representing the Immigration Service. For some
unknown reason, however, District Counsel did not sign
and file the joint motion with the immigration court until
4 No. 04-1109
June 15, 1999—three days past Orichitch’s extended
voluntary departure date.
The IJ denied Orichitch’s Joint Motion to Reopen on
May 8, 2000. In particular, the IJ found that the petitioner’s
failure to depart the country before the expiration of her
voluntary departure period rendered her statutorily
ineligible for adjustment of status pursuant to INA §
240B(d) (codified at 8 U.S.C. § 1229c(d)). The BIA, however,
reversed the IJ’s decision after a joint appeal was filed by
Orichitch and the Immigration Service, and on February 12,
2001, “grant[ed Orichtich’s] motion and remand[ed] the case
for further proceedings.”
Despite the BIA’s explicit remand for further proceed-
ings on the merits, and the fact that Orichitch’s motion
to reopen was the only matter before the BIA when it
ordered that remand, the IJ, in an order dated May 2, 2002,
“concluded that the Board never actually re-opened this
case.” In an attempt to explain the inexplicable, the
IJ stated at a hearing that same day: “[A] lawful order
of the Board has to take priority over my order [of May 8,
2000], if it shows awareness of the circumstances and
facts and law of the case. But I don’t think this order by the
Board does.” By so avoiding his obligation to follow
the mandate of the BIA, the IJ found the case never
reopened. And having found the case never reopened,
he reasoned that the February 10, 1999, voluntary depar-
ture order continued to operate, and that Orichitch re-
mained barred from seeking adjustment of status based on
her presence in the country beyond her voluntary departure
date. The IJ refused to consider petitioner’s application for
adjustment of status.
Orichitch appealed the IJ’s decision to the BIA. On
appeal, the BIA, in a decision dated December 23, 2003,
made clear that its prior remand had indeed served
to reopen Orichitch’s removal proceedings. The Board
No. 04-1109 5
stated: “[W]e will consider the current appeal to be an
appeal of a reopened proceeding in which adjustment of
status has been denied by the Immigration Judge on
remand.” (emphasis added). In a perplexing about face, the
BIA upheld the IJ’s refusal to consider the adjustment
of status application, agreeing that Orichitch’s continued
presence in the country beyond the voluntary departure
date left her statutorily ineligible to apply for adjustment of
status. Orichitch then filed this appeal.
II. ANALYSIS
A. Standard of Review
We review the BIA’s interpretation of the Immigration
and Nationality Act de novo, but will defer to the BIA’s
interpretation of the Act where “the intent of Congress with
respect to the matter at issue is not clear and if the inter-
pretation offered by the BIA is reasonable.” Borca v. INS,
77 F.3d 210, 214 (7th Cir. 1996). If, however, the intent of
Congress is clear, both this Court and the agency must give
effect to that intent. Chevron U.S.A, Inc. v. Nat. Res. Def.
Counsel, Inc., 467 U.S. 837, 842-43 (1984).
B. The Preclusive Effect of Section 240B(d) Was
Vitiated By the BIA’s Grant of the Joint Motion to
Reopen
INA § 240B(d) provides:
If an alien is permitted to depart voluntarily under
this section and fails voluntarily to depart the
United States within the time period specified, the
alien shall . . . be ineligible for a period of 10 years
for any further relief under this section and [INA §
245 (the section governing adjustment of status)].
The order permitting the alien to depart voluntarily
6 No. 04-1109
shall inform the alien of the penalties under this
subsection.
See also In re Shaar, 21 I. & N. Dec. 541 (BIA 1996). There
is no dispute that Orichitch did not depart within the
specified period for her voluntary departure, or that she
was warned in the order of the consequences for failing to
do so. What remains at issue is whether Section 240B(d)
continues to operate in this case.
It does not. The BIA, by granting Orichitch’s motion
to reopen on February 12, 2001, permanently disposed
of the existing Section 240B(d) issue. More precisely, the
grant of the motion to reopen disposed of the Section
240B(d) issue by disposing of the order that other-
wise triggered the operative effect of that section—the
February 10, 1999, voluntary departure order.
In Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004),
we held that “the grant of a motion to reopen vacates the
previous order of deportation or removal and reinstates
the previously terminated immigration proceedings.” See
also Fedorca v. Perryman, 197 F.3d 236, 241 (7th Cir. 1999)
(“If Fedorca’s motion to reopen his deportation proceedings
had been successful, . . . it would have abrogated the [prior]
deportation order.”). Here, when the joint motion to reopen
was granted, the BIA effectively vacated the February 10,
1999, voluntary departure order (a previously entrenched
fixture of the underlying proceedings), disposing along with
it all arguments contingent upon the continued validity of
that order—namely, those predicated on Section 240B(d).
Only an order to voluntarily depart can trigger Section
240B(d), and so it follows that the vacation of such an order
would automatically dispose of the preclusive effect of a
section predicated on that order. When the BIA reopened
Orichitch’s case on February 12, 2001, the matter
was returned to the IJ for adjudication on the merits of
the application both by law and by the Board’s explicit
instruction.
No. 04-1109 7
The BIA’s December 2003 order confirming that the
February 2001 order had indeed served to reopen
Orichitch’s removal proceedings only renders its ultimate
disposition of the second appeal all the more curious.
Though the BIA’s second order confirmed that it had in
its first order reopened her removal proceedings—a dis-
position made possible only by disposing of the Section
240B(d) issue in the petitioner’s favor—that second order
also validated the IJ’s refusal to reach the merits of
Orichitch’s application based on those same grounds
that the Board had previously addressed. These two
conclusions simply cannot be reconciled. Rather, on that
second appeal, once the BIA confirmed that it had in
fact previously reopened Orichitch’s removal proceedings, it
should have made clear that, by virtue of the
case’s reopening, Section 240B(d) no longer precluded
the adjudication of the petitioner’s adjustment of status
application, or the consideration of her approved I-130
visa petition. Because the BIA failed to recognize that
the legal barrier upon which it relied in affirming the denial
of Orichitch’s application was gone—indeed, removed by its
very own hand—we must reverse.
III. CONCLUSION
For the foregoing reasons, we VACATE the BIA’s final
order of removal and REMAND Orichitch’s case for proper
consideration of her adjustment of status application on the
merits—merits which include an approved I-130 visa
petition that uncontestedly speaks to the bona fides of her
marriage to a U.S. citizen.
8 No. 04-1109
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-31-05