Tarlock Singh v. Eric Holder, Jr. , 771 F.3d 647 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARLOCK SINGH, AKA Tarlochan No. 09-73798
Singh,
Petitioner, Agency No.
A073-133-622
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
TARLOCK SINGH, AKA Tarlochan No. 10-72626
Singh,
Petitioner, Agency No.
A073-133-622
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 12, 2014—San Francisco, California
2 SINGH V. HOLDER
Filed November 13, 2014
Before: Raymond C. Fisher, Marsha S. Berzon
and Morgan Christen, Circuit Judges.
Opinion by Judge Fisher
SUMMARY*
Immigration
Declining to accord deference to the Board of
Immigration Appeals’ published decision in Matter of Yauri,
25 I. & N. Dec. 103 (BIA 2009), the panel granted a petition
for review of the denial of a motion to reopen, and held that
the Board has authority to reopen proceedings of an arriving
alien who is under a final order of removal in order to afford
the alien an opportunity to pursue an adjustment of status
application before United States Citizenship and Immigration
Services.
The panel explained that the Board’s authority to reopen
proceedings in this situation is granted, at minimum, by the
unambiguous language of 8 C.F.R. § 1003.2(a), which states
that “[t]he Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision.”
The panel held that the Board’s contrary holding in Matter of
Yauri contravenes the regulation’s plain language and this
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. HOLDER 3
court’s decision in Kalilu v. Holder, 548 F.3d 1215 (9th Cir.
2008).
The panel held that 8 C.F.R. § 1003.2(f), which governs
the Board’s authority to grant a stay of removal, does not
restrict the Board’s broad power to grant a motion to reopen
in any case or suggest in any way that the Board should
refrain from reopening proceedings for the purpose of
affording an alien the opportunity to pursue relief from
removal before another agency.
Because the Board concluded that it lacked authority to
reopen proceedings, the panel held that the Board legally
erred and abused its discretion. The panel remanded for an
exercise of the Board’s discretion whether to reopen
proceedings.
COUNSEL
Zachary Miller Nightingale, Avantika Shastri (argued) and
Amalia Margarete Wille, Van Der Hout, Brigagliano &
Nightingale, LLP, San Francisco, California; Babak
Pourtavoosi, Jackson Heights, New York, for Petitioner.
Blair T. O’Connor (argued), Assistant Director; Remi Da
Rocha-Afodu, Attorney; Tony West, Assistant Attorney
General, Civil Division; Holly M. Smith, Senior Litigation
Counsel, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.
4 SINGH V. HOLDER
OPINION
FISHER, Circuit Judge:
For the second time in six years, we hold that the Board
of Immigration Appeals has authority to reopen proceedings
of an alien who is under a final order of removal in order to
afford the alien an opportunity to pursue an adjustment of
status application before United States Citizenship and
Immigration Services. See Kalilu v. Mukasey, 548 F.3d 1215,
1217–18 (9th Cir. 2008). This authority is granted, at
minimum, by the unambiguous language of 8 C.F.R.
§ 1003.2(a), which states that “[t]he Board may at any time
reopen or reconsider on its own motion any case in which it
has rendered a decision.” Because the Board’s contrary
holding in Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009),
contravenes this regulation’s plain language, we accord it no
deference and decline to follow it.
BACKGROUND
In 2008, an immigration judge (IJ) found the petitioner,
Tarlochan Singh, excludable from the United States, denied
Singh’s requests for asylum, withholding of removal and
relief under the Convention Against Torture and ordered that
he be excluded and deported from the country. Singh
appealed the IJ’s decision to the Board of Immigration
Appeals (BIA or Board), and the Board dismissed Singh’s
appeal, making Singh subject to an administratively final
order of removal. See Ocampo v. Holder, 629 F.3d 923, 928
(9th Cir. 2010); 8 U.S.C. § 1101(a)(47)(B); 8 C.F.R.
§ 1241.1(a).
SINGH V. HOLDER 5
Ninety days later, in February 2010, Singh filed a timely
motion to reopen his exclusion proceedings. See 8 U.S.C.
§ 1229a(c)(7)(C)(i) (providing that a motion to reopen is
timely when filed within 90 days of the date of entry of a
final administrative order of removal); 8 C.F.R.
§ 1003.2(c)(2) (same). In his moving papers, Singh explained
that he had married Patricia Kay Singh, a United States
citizen, in January 2009. In June 2009, Ms. Singh had filed
an immigration visa petition on Singh’s behalf, and in August
2009, United States Citizenship and Immigration Services
(USCIS) had approved the petition. Accordingly, in
November 2009, Singh had filed an application for
adjustment of status with USCIS, seeking to adjust his status
to that of legal permanent resident. Singh argued that the
Board should reopen and continue his exclusion proceedings
to afford him an opportunity to pursue his adjustment of
status application before USCIS without the risk of being
removed. Reopening would have protected Singh from
removal because “the grant of a motion to reopen
automatically vacates” a removal order. Plasencia-Ayala v.
Mukasey, 516 F.3d 738, 745–46 (9th Cir. 2008), overruled on
other grounds by Marmolejo-Campos v. Holder, 558 F.3d
903 (9th Cir. 2009) (en banc). Without reopening, Singh
remains subject to a final order of removal and could be
removed from the United States. If removed, his adjustment
of status application would be deemed abandoned, see
8 C.F.R. § 245.2(a)(4)(ii)(A), and he would be precluded
from reapplying for adjustment of status until he returned to
the United States, which he could not do for 10 years, see
8 U.S.C. § 1182(a)(9)(A)(ii)(II); 8 C.F.R. § 245.1(a). See
Kalilu, 548 F.3d at 1218.
The BIA nonetheless denied Singh’s motion to reopen.
Relying on its precedential decision in Matter of Yauri, 25 I.
6 SINGH V. HOLDER
& N. Dec. 103, decided after Kalilu, the Board ruled that “we
do not have authority to reopen proceedings of aliens who are
under a final order of exclusion to pursue an adjustment
application where we have no jurisdiction over the adjustment
application.” The Board suggested that Singh should request
a stay of removal from the Department of Homeland Security
(DHS), the agency, acting through USCIS, with jurisdiction
over his adjustment application.1 Singh timely petitioned for
review.
JURISDICTION
The denial of a motion to reopen is a final administrative
decision subject to our judicial review. See Oyeniran v.
Holder, 672 F.3d 800, 805 (9th Cir. 2012). Our jurisdiction
arises under 8 U.S.C. § 1252. See Meza-Vallejos v. Holder,
669 F.3d 920, 923 (9th Cir. 2012).
We held in Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.
2002), that we lack jurisdiction to review a BIA decision not
to reopen proceedings sua sponte under 8 C.F.R. § 3.2(a),
now 8 C.F.R. § 1003.2(a). See also Sharma v. Holder,
633 F.3d 865, 874 (9th Cir. 2011); Minasyan v. Mukasey,
553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,
538 F.3d 988, 993 n.8 (9th Cir. 2008); Abassi v. INS,
305 F.3d 1028, 1032 (9th Cir. 2002). That jurisdictional bar,
however, rests on the absence of a judicially manageable
standard for us to evaluate the BIA’s exercise of discretion in
ruling on a motion to reopen. See Ekimian, 303 F.3d at 1159.
Where, as here, the BIA concludes that it lacks the authority
1
DHS possesses the authority to grant a stay of removal under 8 C.F.R.
§§ 241.6(a) and 1241.6(a), although Singh asserts that DHS’s denial of a
stay is not subject to judicial review.
SINGH V. HOLDER 7
to reopen, rather than denying a motion to reopen as an
exercise of discretion, we hold that Ekimian does not preclude
our jurisdiction.2
STANDARD OF REVIEW
We review the denial of a motion to reopen for an abuse
of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964
(9th Cir. 2002). “The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to the law, and when it
fails to provide a reasoned explanation for its actions.”
Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir.
2014) (internal quotation marks omitted).
“An agency’s interpretation of its own regulation is
‘controlling’ if it is not ‘plainly erroneous or inconsistent’
with the regulation.” L.A. Closeout, Inc. v. Dep’t of
Homeland Sec., 513 F.3d 940, 942 (9th Cir. 2008) (quoting
Auer v. Robbins, 519 U.S. 452, 461 (1997)). Thus, “we defer
to the agency’s interpretation . . . unless an alternative reading
is compelled by the regulation’s plain language or by other
indications of the [agency’s] intent at the time of the
regulation’s promulgation.” Id. (alteration in original)
(quoting Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir.
2006)) (internal quotation marks omitted).
2
It is not clear whether the BIA denied Singh’s motion to reopen under
§ 1003.2(a), under § 1003.2(c) or under both of these provisions.
Regardless, we have jurisdiction to review the BIA’s decision even if it
acted solely under § 1003.2(a); the government does not argue to the
contrary.
8 SINGH V. HOLDER
DISCUSSION
In his petition for review, Singh contends the BIA abused
its discretion when it concluded that it lacked authority to
reopen his exclusion proceedings. We agree. Because the
BIA denied Singh’s motion to reopen in reliance on its
precedential decision in Matter of Yauri, we begin by
summarizing that decision.
In 2003, the BIA entered a final administrative order in
Yauri’s removal proceedings, dismissing Yauri’s appeal from
the immigration judge’s decision. See Matter of Yauri, 25 I.
& N. Dec. at 103. Four years later, Yauri filed an untimely
motion to reopen, arguing that the Board should reopen her
removal proceedings and then continue them indefinitely so
she could pursue an application for adjustment of status
before USCIS without being subject to a final order of
removal. See id. at 103–04. Because her motion was
untimely, Yauri urged the Board to use its authority to reopen
her removal proceedings sua sponte under 8 C.F.R.
§ 1003.2(a). See id. at 104. That regulation states that “[t]he
Board may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision.”
8 C.F.R. § 1003.2(a). Motions to reopen under § 1003.2(c),
by contrast, generally must be filed within 90 days. See id.
§ 1003.2(c)(2).
The Board denied Yauri’s motion to reopen. It began by
noting that, because Yauri was an arriving alien rather than an
admitted one, only USCIS, not an immigration judge or the
BIA, had jurisdiction over Yauri’s application for adjustment
of status. See Matter of Yauri, 25 I. & N. Dec. at 107 (citing
8 C.F.R. § 245.2(a)(1)). Next, the Board reasoned that,
although Yauri had filed a motion to reopen and continue her
SINGH V. HOLDER 9
removal proceedings pending USCIS’ consideration of her
adjustment application, Yauri effectively was seeking “a stay
of removal pending adjudication of an application by the
USCIS.” Id. at 108–09 & n.4 (emphasis added). Thus, rather
than asking whether it had authority to reopen and continue
Yauri’s proceedings, the Board asked whether it had statutory
or regulatory authority to issue a “stay” of removal. See id.at 108–10.
The Board held that it lacked such authority. It reasoned
that the sole source of its authority to enter a stay of removal
was found in 8 C.F.R. § 1003.2(f) and concluded that
§ 1003.2(f) did not authorize a stay of removal for purposes
of pursuing an application for adjustment of status before
another agency. See id. at 109.3 The Board said:
We do not view the Board’s authority to
consider stays of execution of final orders,
which we have been granted under Federal
regulations, to extend this far. In particular,
we have been granted limited stay authority
under the regulations, which is almost
3
Section 1003.2(f) states:
Stay of deportation. Except where a motion is filed
pursuant to the provisions of §§ 1003.23(b)(4)(ii) and
1003.23(b)(4)(iii)(A), the filing of a motion to reopen
or a motion to reconsider shall not stay the execution of
any decision made in the case. Execution of such
decision shall proceed unless a stay of execution is
specifically granted by the Board, the Immigration
Judge, or an authorized officer of the Service.
8 C.F.R. § 1003.2(f).
10 SINGH V. HOLDER
exclusively tied to pending motions before the
Board. 8 C.F.R. § 1003.2(f). Under that
authority, if there is no automatic stay under
the regulations, we may determine whether to
grant a stay of execution of the final
deportation or removal order while we
consider the motion that is pending before us.
Id. Likewise, an Immigration Judge also
has authority to stay execution of a final
order while a motion is pending before
the Immigration Court. 8 C.F.R.
§ 1003.23(b)(1)(v) (2009). The stay authority
granted to the Board and Immigration Judges
does not provide general authority to grant
stays of administratively final orders in
conjunction with matters over which we have
no authority. Rather, the limited stay
authority provides the opportunity to stay
proceedings while a pending motion is
adjudicated. That stay authority also
terminates upon adjudication of the pending
motion.
Id. On the strength of this reasoning, the Board concluded
that it had “not been granted authority to reopen the
proceedings of respondents who are under a final
administrative order of removal to pursue matters that could
affect their removability if we have no jurisdiction over such
matters.” Id. at 110.
We decline to follow Yauri. As noted, we are bound to
follow an agency’s reasonable interpretations of its own
regulations, but we do not defer to an agency’s interpretation
when it is contrary to the plain language of the regulation.
SINGH V. HOLDER 11
See Lal v. INS, 255 F.3d 998, 1004, amended by 268 F.3d
1148 (9th Cir. 2001). That is the case here. Section
1003.2(a) plainly and unambiguously states that “[t]he Board
may at any time reopen or reconsider on its own motion any
case in which it has rendered a decision.” 8 C.F.R.
§ 1003.2(a) (emphasis added). The Board therefore had
authority to reopen Singh’s proceedings under § 1003.2(a).
Section 1003.2(f), upon which the BIA relied in Yauri, is
not to the contrary. By its plain language, that provision
simply gives the Board authority to grant a stay of removal
while a motion to reopen is pending – after the motion has
been filed but before it has been acted on by the BIA. The
provision does not restrict the BIA’s broad power to grant a
motion to reopen in any case or suggest in any way that the
BIA should refrain from reopening proceedings for the
purpose of affording an alien the opportunity to pursue relief
from removal before another agency. On the contrary,
subsections 1003.2(a) and (f) are fully consistent with BIA’s
broad authority to grant motions to reopen in any case.
The Board’s conclusion that it lacks the authority to
reopen Singh’s case is also contrary to our decision in Kalilu.
There, as here, the Board denied the petitioner’s timely
motion to reopen, concluding that it lacked jurisdiction to
reopen because USCIS, rather than the immigration court,
had jurisdiction over the petitioner’s adjustment of status
application. See Kalilu, 548 F.3d at 1217–18. We rejected
the BIA’s conclusion that it lacked jurisdiction to reopen the
petitioner’s case, holding that “the BIA’s denial of
Petitioner’s motion to reopen solely on jurisdictional grounds
constitutes an abuse of discretion,” id., and remanding for the
Board to exercise its discretion, see id. at 1218. In Yauri, the
Board declined to follow Kalilu, concluding that the decision
12 SINGH V. HOLDER
did not speak directly to the Board’s authority to reopen for
the purpose of effecting a stay. See Matter of Yauri, 25 I. &
N. Dec. 108 n.3. We disagree.
Kalilu specifically held that the Board had jurisdiction to
grant a motion to reopen “in order to provide time for USCIS
to adjudicate a pending application” for adjustment of status.
Kalilu, 548 F.3d at 1218. Yauri’s rationale for disregarding
Kalilu therefore constitutes legal error. Given that the BIA
ordinarily “follows the law of the circuit in which an
individual case arises,” Jama v. Immigration & Customs
Enforcement, 543 U.S. 335, 350 n.10 (2005); see also Matter
of K-S-, 20 I. & N. Dec. 715, 718 (BIA 1993); Matter of
Anselmo, 20 I. & N. Dec. 25, 31–32 (BIA 1989), the BIA has
failed to adequately explain its decision not to follow Kalilu
in Singh’s case. See Movsisian v. Ashcroft, 395 F.3d 1095,
1098 (9th Cir. 2005) (“We have long held that the BIA abuses
its discretion when it fails to provide a reasoned explanation
for its actions.”).
In holding that the BIA had authority to reopen Singh’s
case under § 1003.2(a), we do not suggest this was
necessarily the sole source of the BIA’s authority to reopen.
Because Singh’s motion was timely, the Board may have had
authority to reopen under § 1003.2(c) as well. That provision
recognizes that, at least under some circumstances, a motion
to reopen may be filed “for the purpose of affording the alien
an opportunity to apply for any form of discretionary relief.”
8 C.F.R. § 1003.2(c)(1). Adjustment of status is a form of
discretionary relief. See Hernandez v. Ashcroft, 345 F.3d
824, 845 (9th Cir. 2003); Eligibility of Arriving Aliens in
Removal Proceedings To Apply for Adjustment of Status,
71 Fed. Reg. 27,585, 27,588 (May 12, 2006). Indeed, the
BIA has long recognized its authority to reopen a case to
SINGH V. HOLDER 13
permit an alien to pursue an adjustment of status application,
even when a portion of the application – the visa petition – is
to be adjudicated by USCIS rather than by an immigration
judge. See Matter of Hashmi, 24 I. & N. Dec. 785, 788 (BIA
2009); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA
1978), modified on other grounds by Matter of Arthur, 20 I.
& N. Dec. 475 (BIA 1992), abrogated as recognized in
Tadevosyan v. Holder, 743 F.3d 1250, 1253 (9th Cir. 2014).
Here, however, we need not address the Board’s authority to
reopen under § 1003.2(c). Because the Board had authority
to reopen under § 1003.2(a), the Board’s denial of Singh’s
motion to reopen on jurisdictional grounds was legal error,
and is alone sufficient reason to grant Singh’s petition for
review.
The government argues the BIA’s error in ruling that it
lacked authority to reopen Singh’s case was harmless because
the BIA could have denied Singh’s motion as an exercise of
discretion. We may uphold a decision of the BIA, however,
solely on the grounds given by the agency. See Andia v.
Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing
the decision of the BIA, we consider only the grounds relied
upon by that agency. If we conclude that the BIA’s decision
cannot be sustained upon its reasoning, we must remand to
allow the agency to decide any issues remaining in the
case.”). Because the BIA denied Singh’s motion only for
lack of authority, we grant the petition and remand to the
BIA.
In sum, we hold the BIA erred when it denied Singh’s
motion to reopen for lack of authority. Because the BIA’s
decision was contrary to law, it abused its discretion. We
grant the petition for review in No. 10-72626 and remand to
the BIA for an exercise of the agency’s discretion. See
14 SINGH V. HOLDER
Kalilu, 548 F.3d at 1218. We express no opinion on how that
discretion should be exercised.4 We deny the petition for
review in No. 09-73798 for the reasons stated in a
concurrently filed memorandum disposition.
In No. 09-73798, PETITION DENIED.
In No. 10-72626, PETITION GRANTED;
REMANDED.
4
In Matter of Yauri, as well as in this case, the Board suggested that its
discretion should not be favorably exercised in cases such as Singh’s
because the better practice would be for an alien in Singh’s position to
seek a stay from DHS rather than seeking reopening from the BIA. See
25 I. & N. Dec. at 109–10. At oral argument, however, Singh’s counsel
noted that a denial of a stay by DHS would not be subject to judicial
review, whereas a denial of a motion to reopen by the BIA would be
reviewable, at least if issued under § 1003.2(c). Given the significance of
the rights at stake, this may be an important consideration in the Board’s
exercise of discretion. See Kalilu, 548 F.3d at 1218 (noting that “[t]he
opportunity that [federal law] affords for an arriving alien in removal
proceedings to establish his eligibility for adjustment based on a bona fide
marriage is rendered worthless where [removal is not stayed] in order to
provide time for USCIS to adjudicate a pending application”). Although
motions to reopen are disfavored, see INS v. Doherty, 502 U.S. 314, 323
(1992); INS v. Abudu, 485 U.S. 94, 107 (1988), they also constitute an
“important safeguard” of an alien’s rights, Dada v. Mukasey, 554 U.S. 1,
18 (2008).