Gao, Yuan v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3215
YUAN GAO,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
SUBMITTED AUGUST 26, 2006—DECIDED SEPTEMBER 25, 2006
____________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. At the suggestion of an
immigration judge, Yuan Gao withdrew his application for
asylum in exchange for an opportunity to depart volun-
tarily. He did not use this opportunity, however. Regretting
his decision to abandon the request for asylum (a step that
he attributes to bad legal advice), he asked the immigration
judge to reopen. The IJ declined, the Board of Immigration
Appeals dismissed the appeal, and the alien filed a petition
for judicial review.
In lieu of a brief, the Attorney General has filed a motion
to dismiss for want of jurisdiction. The basis of this motion
is that on August 4, 2006, about a month after the alien
2 No. 05-3215
filed his opening brief in this court, the Board reopened the
proceedings on its own motion. According to the respondent,
this means that we must dismiss the petition, because we
are entitled to review only final orders of removal, see 8
U.S.C. §1252(a)(1), and this order is no longer final. See
Orichitch v. Gonzales, 421 F.3d 595, 597-98 (7th Cir. 2005);
Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004).
This supposes, however, that the Board may withdraw its
decision after a petition for review has been filed. The
Attorney General (representing the Board) regularly asks
for permission to reopen or reconsider an order, and we held
in Xue Ye Ren v. Gonzales, 440 F.3d 446 (7th Cir. 2006),
that such a request should be granted as a matter of course.
We assumed that a request was necessary. Normally a
petition for judicial review, like an appeal from a judgment
of a district court, transfers authority over the case; if both
tribunals could proceed in the same matter at the same
time, confusion and wasted effort would ensue. See Griggs
v. Provident Consumer Discount Co., 459 U.S. 56 (1982);
Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989). We
therefore directed the parties to address the question
whether the Board needs our permission to act after a
petition for review has been filed—for, if it does, the Board’s
latest order is ineffectual and this court retains jurisdiction.
The approach that governs appeals within the judicial
system does not, however, apply here. Stone v. INS, 514
U.S. 386 (1995), concluded that, in immigration law, the
agency’s decision on the merits and an order denying
reconsideration or reopening are independently reviewable.
One consequence is that the alien must file an immediate
petition if he wants the Board’s principal decision to be
reviewable; an alien who chooses to wait and files a petition
only after reconsideration has been denied presents for
judicial review only the order denying reconsideration. A
second consequence—which was assumed rather than
discussed in Stone—is that the Board may rule on an alien’s
No. 05-3215 3
request for reconsideration or reopening while a petition for
review of the main decision is before the court. That’s how
it would be possible for two petitions for judicial review to
be pending simultaneously and consolidated, as 8 U.S.C.
§1252(b)(6) provides. (At the time of Stone, this provision
was in 8 U.S.C. §1105a(a)(6); its substance is unchanged by
intervening legislation.) Because the Board is empowered
to decide the pending issue, a grant of relief is no more
problematic than a denial; there would be no point to a rule
that treats the subjects as independent but ties the Board’s
hands by requiring a mechanical denial of every motion for
reconsideration. It is only a small step to say that, if the
Board may grant a motion to reconsider or reopen without
leave of court, it may reopen sua sponte. If, as Stone holds,
a single immigration matter may be before the court and
the agency for decision simultaneously, it cannot matter
whether the agency’s decision is prompted by a litigant’s
request or its internal processes.
So we hold that the Board did not need judicial permis-
sion to reopen a proceeding. Accord, Lopez-Ruiz v. Ashcroft,
298 F.3d 886 (9th Cir. 2002). (As far as we can tell, Lopez-
Ruiz is the only other published appellate decision that has
addressed this issue.) Yuan Gao has asked us to retain
jurisdiction while the Board reconsiders, but there is
nothing to retain jurisdiction of. The order sought to be
reviewed is no more. Any judicial act while there is no
outstanding order of removal would be advisory. If the
Board enters a new final order, that step could be met by a
fresh petition for review.
The Attorney General’s motion to dismiss is granted.
4 No. 05-3215
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-25-06