Lazaro v. Mukasey ( 2008 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DIONISIO LAZARO,                           
    Petitioner,           No. 05-70165
    v.
            Agency No.
    A24-567-373
    MICHAEL B. MUKASEY, Attorney
    General,                                             OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    February 14, 2008—San Francisco, California
    Filed June 4, 2008
    Before: William C. Canby, Jr. and Milan D. Smith, Jr.,
    Circuit Judges, and Stephen G. Larson,* District Judge.
    Opinion by Judge Larson
    *The Honorable Stephen G. Larson, United States District Judge for the
    Central District of California, sitting by designation.
    6351
    LAZARO v. MUKASEY                    6353
    COUNSEL
    James Todd Bennett, El Cerrito, California, for the petitioner.
    Jeffrey J. Bernstein (argued) and Melissa Neiman-Kelting (on
    the brief), Office of Immigration Litigation, Civil Division,
    U.S. Department of Justice, for the respondent.
    6354                 LAZARO v. MUKASEY
    OPINION
    LARSON, District Judge:
    Dionisio Lazaro, a native and citizen of the Philippines,
    petitions for review of the Board of Immigration Appeals’
    (“BIA”) order dismissing his appeal from an immigration
    judge’s (“IJ”) removal order, which denied his application for
    withholding of removal and protection under the Convention
    Against Torture. We have jurisdiction under 
    8 U.S.C. § 1252
    (a)(2)(D) and we review de novo questions of law. See
    Fernandez-Ruiz v. Gonzales, 
    468 F.3d 1159
    , 1163 (9th Cir.
    2006). We deny the petition for review to the extent it con-
    tends that Lazaro’s Notice to Appear (“NTA”) was defective
    and deprived the Immigration Court of jurisdiction to begin
    his removal proceedings. As the BIA’s decision under review
    contains an erroneous description of how Lazaro’s NTA was
    amended in the Immigration Court, however, we grant the
    petition for review in part and remand for the BIA to address
    in the first instance Lazaro’s contention that the IJ acted
    beyond her authority in amending his NTA sua sponte.
    I
    Lazaro came to the United States as an immigrant in 1984,
    and worked as a physician. In 1997, he was convicted of
    grand theft in violation of California Penal Code § 487(1),
    and sentenced to two years imprisonment. The underlying
    criminal conduct was a scheme to defraud the MediCal health
    insurance program by billing for phantom patients, in which
    Lazaro and others participated.
    On May 14, 1998, Lazaro was served with an NTA alleging
    that he was removable because of his conviction for “an
    aggravated felony as defined in Section 101(a)(43) of the
    [Immigration and Nationality] Act.” At a hearing before the
    IJ on August 3, 1998, Lazaro’s counsel objected that the NTA
    did not specify the aggravated felony subsections under which
    LAZARO v. MUKASEY                          6355
    Lazaro was being charged. The following exchange then took
    place between the IJ and counsel for the former Immigration
    and Naturalization Service (INS):1
    [IJ:] Counsel for the Government, do you wish at
    this time to make an addition, 101(a)(43)(G)?
    [INS counsel:] [I]t’s the position of the Service that
    as long as the charge is explicit in that it is an aggra-
    vated felony, the specific sub[-]provision of
    101(a)(43) need not be provided. However, the Ser-
    vice would not oppose a motion to add a provision
    that would make it more specific.
    [IJ:] All right. [A]nd what provision is that? What do
    you want to add then, [counsel]?
    [INS counsel:] The Service would really not oppose
    a motion. The Service would prefer not to . . . make
    the motion itself. The Service feels that this is ade-
    quate in and of itself.
    [IJ:] All right. Well, I think it’s important to just be
    specific, I mean, so that we’re very clear and there’s
    no confusion. So do you want to put (G)[?]
    [B]ecause . . . that’s what I’m going to do[.] . . . Do
    you have any opposition to that?
    [INS counsel:] That would be fine, Your Honor. . . .
    The Service would not oppose that.
    [IJ:] All right then. So it will just show
    101(a)(43)(G). . . . I believe he falls under (M) as
    1
    On March 1, 2003, the INS ceased to exist and its functions were trans-
    ferred to the newly created Department of Homeland Security. See
    Chuyon Yon Hong v. Mukasey, 
    518 F.3d 1030
    , 1032 n.1 (9th Cir. 2008).
    For the sake of consistency, we refer to the INS in this opinion.
    6356                   LAZARO v. MUKASEY
    well. Do you just want one or do you want both,
    [counsel]?
    [INS counsel:] Both would be fine.
    The IJ proceeded to write in subsections (G) and (M) on
    Lazaro’s NTA. Immigration and Nationality Act
    § 101(a)(43)(G), codified at 
    8 U.S.C. § 1101
    (a)(43)(G),
    defines “aggravated felony” to include “a theft offense
    (including receipt of stolen property) or burglary offense for
    which the term of imprisonment [is] at least one year,” while
    subsection (M) defines in pertinent part “an offense that . . .
    involves fraud or deceit in which the loss to the victim or vic-
    tims exceeds $10,000.” Lazaro’s counsel objected to the
    amendment, but agreed with the IJ’s suggestion that a two-
    week recess be taken for him to review the amended NTA.
    Two weeks later, the matter was held over for a month to
    allow the government to produce certified conviction docu-
    ments. At a hearing on September 16, 1998, Lazaro’s counsel
    moved to terminate proceedings. The IJ denied the motion to
    terminate, stating that “the Court has always made it a process
    of being able to amend a document and interlineate a charge
    and here that’s basically what happened. The respondent was
    charged as an aggravated felon and there was a general
    (a)(43) charge and . . . the Service made a more specific
    charge with regard to 101(a)(43) . . . . The Court . . . [has] his-
    torically interlineated, or had the Service to interlineate and
    change various charges where appropriate.” Counsel repre-
    sented that Lazaro did not wish to apply for relief, and the IJ
    ordered Lazaro removed to the Philippines “on the charges as
    set forth in the Notice to Appear.”
    On appeal, the BIA remanded the case to the IJ to prepare
    a full decision. Lazaro then applied for relief based on his
    alleged fear of persecution in the Philippines by his former
    employer in the United States, Dr. Michael Natividad, as
    retaliation for the MediCal fraud investigation that led Nativi-
    LAZARO v. MUKASEY                    6357
    dad to flee to the Philippines to avoid criminal charges. The
    IJ denied relief and again ordered Lazaro removed “on the
    charges as set forth in the charging document.”
    Lazaro appealed to the BIA, including as one of his argu-
    ments that “the Immigration Judge acted in excess of jurisdic-
    tion” with respect to the NTA. Lazaro incorporated the
    contention in his prior brief to the BIA that “under the regula-
    tions enacted by the Attorney General, the Service was per-
    mitted to lodge in writing amendments to the charging
    documents . . . . No where, however, is the Immigration Judge
    permitted to do so on her own accord. . . . Accordingly, the
    amendment of the NTA by the Immigration Judge was in
    excess of jurisdiction and void ab initio.”
    The BIA dismissed Lazaro’s appeal in the decision we are
    reviewing. The BIA’s order states in part that “[t]he Notice of
    Appeal [sic] was amended by the Department of Homeland
    Security . . . on August 3, 1998, at the master calendar hearing
    over the objection of the respondent.” The BIA concluded that
    the NTA informed Lazaro “that he was removable as an
    aggravated felon because of his 1997 conviction for gran[d]
    theft. Based upon this information, we find that he was pro-
    vided sufficient detail to understand the basis for the charges
    of removability.” Moreover, the BIA stated, Lazaro “has not
    demonstrated any prejudice to himself as a result of failure to
    specify the subsection of the aggravated felony provision in
    the Notice to Appear. After the Notice to Appear was
    amended, he had notice of the provisions at issue and time to
    prepare his defense. [He] also was given timely notice of the
    hearing and he and his attorney subsequently appeared.”
    II
    [1] Lazaro contends that the Immigration Court lacked
    jurisdiction over his case due to “non-compliance with 
    8 U.S.C. § 1229
    (a)(1)(D).” Section 1229(a)(1)(D), contained in
    a section titled “Initiation of Removal Proceedings,” requires
    6358                  LAZARO v. MUKASEY
    the NTA to include “[t]he charges against the alien and the
    statutory provisions alleged to have been violated.” In this
    case, the NTA states that Lazaro is “subject to removal from
    the United States pursuant to [§] 237(a)(2)(A)(iii)” for com-
    mitting “an aggravated felony as defined in Section
    101(a)(43) of the [Immigration and Nationality] Act.” The
    NTA also alleges in its recitation of facts that Lazaro was “on
    5/1/97, convicted in the Superior Court of California . . . for
    the offense of Grand Theft property, in violation of Section
    487(1) of the California Penal Code.”
    The Immigration Court’s jurisdiction vests “when a charg-
    ing document is filed with the Immigration Court by the Ser-
    vice.” 
    8 C.F.R. § 1003.14
    . A petitioner is entitled to relief
    from a defective NTA if he “show[s] that the Immigration
    Court lacked jurisdiction.” Kohli v. Gonzales, 
    473 F.3d 1061
    ,
    1067 (9th Cir. 2007). The petitioner in Kohli alleged that the
    absence of a legible name and title of her NTA’s issuing offi-
    cer deprived the IJ of jurisdiction over her case. 
    Id.
     We
    rejected this argument, explaining that the NTA “fully
    informed Kohli of the charges against her” and that “Kohli
    has not shown that any statute or regulation requires the inclu-
    sion of the name and title of the issuing officer on the NTA.”
    
    Id. at 1067-68
    .
    [2] In Lazaro’s case, although the NTA failed fully to spec-
    ify “the statutory provisions alleged to be violated,” 
    8 U.S.C. § 1229
    (a)(1)(D), by not including any aggravated felony sub-
    sections, we conclude that the Immigration Court did not lack
    jurisdiction as a result. Lazaro’s charging document satisfied,
    albeit minimally, § 1229(a)(1)(D)’s requirements by specify-
    ing that Lazaro was removable as an aggravated felon pursu-
    ant to identified provisions of the Immigration and Nationality
    Act, as well as his underlying criminal conviction.
    [3] The INS filed the NTA with the Immigration Court in
    accordance with 
    8 C.F.R. § 1003.14
    (a). Jurisdiction therefore
    vested, and the IJ did not err in proceeding with Lazaro’s
    LAZARO v. MUKASEY                             6359
    case. See Kohli, 
    473 F.3d at 1068
     (“The government met its
    burden of establishing jurisdiction in the Immigration Court
    by issuing a NTA pursuant to 
    8 U.S.C. § 1229
    (a)(1), and then
    filing that notice to appear with the Immigration Court.”)
    (citations omitted).2
    III
    [4] The BIA’s decision does not address Lazaro’s addi-
    tional contention that, even if the IJ had jurisdiction to com-
    mence his removal proceedings, she was not authorized to
    amend his NTA sua sponte. Instead, the BIA apparently pro-
    ceeded on the understanding that these amendments were
    made by the INS. The record excerpts reproduced above make
    clear, however, that the INS did not amend Lazaro’s NTA, or
    provide an answer to the IJ’s inquiry about what aggravated
    felony subsections the INS wished to apply to Lazaro, but
    rather acquiesced in the IJ’s own amendments. The INS’s
    stated position in declining the IJ’s invitation for the govern-
    ment to move to amend the NTA was that the NTA was “ade-
    quate in and of itself,” without specification of any aggravated
    felony subsections.
    In this court, there is no dispute about how Lazaro’s NTA
    was amended. The Attorney General’s brief repeatedly
    acknowledges “the immigration judge’s amendment of the
    NTA,” and, in response to Lazaro’s argument that this was
    improper, cites 
    8 C.F.R. § 1240.2
    (a) as supporting an IJ’s
    general authority to conduct proceedings.3 Lazaro counters by
    citing 
    8 C.F.R. § 1240.10
    (e), which states:
    2
    We need not decide whether, had the IJ and the INS proceeded without
    amending Lazaro’s NTA, the NTA would have impermissibly “obscured
    the charges against [him] or obstructed [his] ability to respond to the
    charges.” Kohli, 
    473 F.3d at 1068
    .
    3
    
    8 C.F.R. § 1240.2
    (a) states, inter alia, that “[n]othing contained in this
    subpart diminishes the authority of an immigration judge to conduct pro-
    ceedings under this part.”
    6360                      LAZARO v. MUKASEY
    Additional charges in removal hearings. At any
    time during the proceeding, additional or substituted
    charges of inadmissibility and/or deportability and/or
    factual allegations may be lodged by the Service in
    writing. The alien in removal proceedings shall be
    served with a copy of these additional charges and
    allegations. The immigration judge shall read the
    additional factual allegations and charges to the alien
    and explain them to him or her. The immigration
    judge shall advise the alien, if he or she is not repre-
    sented by counsel, that the alien may be so repre-
    sented, and that he or she may be given a reasonable
    continuance to respond to the additional factual alle-
    gations and charges. Thereafter, the provision of
    § 1240.6(b) relating to pleading shall apply to the
    additional factual allegations and charges.
    
    8 C.F.R. § 1240.10
    (e).4
    [5] To our knowledge, the BIA has not addressed either the
    relationship between the regulatory provisions cited by
    Lazaro and the Attorney General, or, more generally, whether
    the Immigration and Nationality Act and the agency’s regula-
    tions permit an IJ to amend an NTA sua sponte. If the IJ’s
    amendment of Lazaro’s NTA was ultra vires, he is not
    required to show prejudice to the outcome of his proceedings
    for relief to be granted. Cf. Noriega-Lopez v. Ashcroft, 
    335 F.3d 874
    , 884 (9th Cir. 2003) (“Unlike a claimed due process
    violation, a component of which is to show prejudice, the
    BIA’s lack of authority to enter Noriega-Lopez’s removal
    order renders that component of his proceedings in essence,
    a legal nullity.” (internal quotation marks and citations omit-
    ted)). In this context, we conclude that a remand to the BIA
    4
    
    8 C.F.R. § 240.10
    (e) (1998), the regulation in effect at the time of
    Lazaro’s 1998 removal hearings, was identical in all pertinent respects.
    See also 
    8 C.F.R. § 240.2
    (a) (1998) (equivalent and identical regulation to
    
    8 C.F.R. § 1240.2
    (a), cited by the Attorney General).
    LAZARO v. MUKASEY                   6361
    is appropriate for the Board to consider Lazaro’s argument
    regarding the IJ’s amendment of his NTA in the first instance.
    See INS v. Orlando Ventura, 
    537 U.S. 12
    , 16 (2002) (per
    curiam) (“Generally speaking, a court of appeals should
    remand a case to an agency for decision of a matter that stat-
    utes place primarily in agency hands.”).
    In light of our disposition, we need not address Lazaro’s
    remaining contentions. The parties shall bear their own costs.
    PETITION FOR REVIEW DENIED                        in   part;
    GRANTED in part; REMANDED.