Mihai Nicusor-Remus v. Jefferson Sessions, III , 902 F.3d 895 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIHAI NICUSOR-REMUS, AKA Denis No. 15-70588
Philip Florance,
Petitioner, Agency No.
A095-441-678
v.
JEFFERSON B. SESSIONS, III, OPINION
Attorney General of the United
States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 10, 2018
Seattle, Washington
Filed August 8, 2018
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and John R. Tunheim, Chief District Judge.*
Opinion by Chief District Judge Tunheim
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
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SUMMARY**
Immigration
The panel dismissed for lack of jurisdiction Mihai
Nicusor-Remus’s petition for review of the Board of
Immigration Appeals’ decisions denying his motion to
terminate asylum-only proceedings and denying his
application for asylum.
Nicusor entered the United States in 2000 pursuant to the
Visa Waiver Program (“VWP”). After an arrest for credit
card fraud in 2002, the Immigration and Naturalization
Service issued a Notice of Intent to Deport, which concluded
that Nicusor was removable and had waived his right to
contest his removability as a VWP entrant. As part of his
plea agreement in the credit card prosecution, Nicusor agreed
to testify against his co-conspirators, in exchange for help
resolving his immigration status. In 2004, an FBI agent and
Immigration and Customs Enforcement agent escorted
Nicusor across the border into Mexico, whereupon he was
immediately issued an I-94 Departure Record, paroling him
into the United States for “significant public interest,” so he
could testify against his co-conspirators. In 2012, after
Nicusor’s parole had expired, the Department of Homeland
Security took Nicusor into custody pursuant to the 2002
removal order, after which Nicusor requested asylum, was
placed in asylum-only proceedings, and denied asylum relief.
Nicusor now seeks review of the denial of his motion to
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NICUSOR-REMUS V. SESSIONS 3
terminate asylum-only proceedings and the denial of asylum
relief.
The panel held that there was no final order of removal
over which it had jurisdiction. The panel considered two
possible decisions that could confer jurisdiction: (1)
Nicusor’s 2002 removal order and (2) the Board’s order
denying Nicusor’s asylum application in the asylum-only
proceeding.
The panel held that the 2002 Notice of Intent to Deport
constituted a final order of removal for purposes of
determining jurisdiction. The panel explained that the 2002
order could form the basis for jurisdiction over the Board’s
orders denying the motion to terminate asylum-only
proceedings and denying asylum relief only if DHS properly
placed Nicusor in asylum-only proceedings. The panel
further explained that asylum-only proceedings were
appropriate only if the 2002 order had not been executed.
The panel rejected Nicusor’s argument that the denial of
his asylum application in asylum-only proceedings
constituted a final order of removal. The panel explained that
although asylum-only proceedings may affect the ability of
DHS to execute the outstanding removal order, such
proceedings act only to stay enforcement of the original
removal order. The panel explained that the denial of relief
in asylum-only proceedings is not itself a final order of
removal, but rather is relevant to the finality of the DHS’s
removal order of a VWP entrant.
The panel held that the 2002 order was executed when
Nicusor departed in 2004. Because the 2002 order had
already been executed when Nicusor entered the United
4 NICUSOR-REMUS V. SESSIONS
States in 2004, he was no longer an applicant under the VWP,
but an applicant for admission. The panel concluded that
DHS therefore erred in placing Nicusor in asylum-only
proceedings. The panel further concluded that because DHS
failed to make an additional finding of removability after
apprehending Nicusor in 2012, there was no final order of
removal over which it had jurisdiction.
COUNSEL
Rosario Daza (argued) and Lori K. Walls, Washington
Immigration Defense Group, Seattle, Washington; for
Petitioner.
Matthew Allan Spurlock (argued), Trial Attorney; John S.
Hogan, Assistant Director; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
NICUSOR-REMUS V. SESSIONS 5
OPINION
TUNHEIM, Chief District Judge:
Petitioner Mihai Nicusor-Remus petitions for review of
two orders of the Board of Immigration Appeals (“BIA”)
denying his motion to terminate asylum-only proceedings and
his asylum application. Nicusor is subject to a 2002 removal
order. We conclude that the 2002 removal order was
executed when Nicusor briefly departed the United States in
2004. Because there is no final removal order over which we
have jurisdiction, we dismiss Nicusor’s petition for lack of
jurisdiction.
I.
The Visa Waiver Program (“VWP”) allows nationals of
certain countries to enter the United States without a visa.
8 U.S.C. § 1187(a). Admission as a VWP entrant is subject
to numerous restrictions, including waiver of any right “to
contest, other than on the basis of an application for asylum,
any action for removal of the alien.” Id. § 1187(b)(2). The
Department of Homeland Security (“DHS”) determines
whether a VWP entrant is removable “without referral of the
alien to an immigration judge for a determination of
deportability.” 8 C.F.R. § 217.4(b)(1). VWP entrants are not
entitled to full removal proceedings under Immigration and
Nationality Act § 240, but they are entitled to asylum-only
proceedings. Id. § 208.2(c).
In 2000, Nicusor – a Romanian national – entered the
United States as a VWP entrant. In May 2002, Nicusor was
arrested for credit-card fraud. The charges were dropped
after he agreed to work as an FBI informant. In December
6 NICUSOR-REMUS V. SESSIONS
2002, Nicusor was again arrested for credit-card fraud.
Immigration and Naturalization Services (“INS”) (the
predecessor of the immigration agencies now housed in DHS)
detained Nicusor and issued a Notice of Intent to Deport,
which concluded that Nicusor was removable and had waived
his right to contest his removability as a VWP entrant.
Nicusor contacted an FBI agent, who secured his release from
INS custody. As part of a plea agreement, Nicusor agreed to
testify against his co-conspirators in exchange for assistance
resolving his immigration status. In December 2003, Nicusor
was convicted of one count of conspiracy and sentenced to
eight months of imprisonment.
Nicusor was released from jail sometime around March
2004. Shortly after his release, an FBI agent and an
Immigration and Customs Enforcement (“ICE”) agent drove
Nicusor to the United States-Mexico Border. The agents
escorted Nicusor across the border into Tijuana and then back
into the United States. According to Nicusor’s testimony
before the Immigration Judge (“IJ”), the agents wanted to
take Nicusor out of the country and bring him back legally so
that he could testify against the criminal organization at trial.
On March 4, 2004, Nicusor was issued an I-94 Departure
Record, paroling him into the United States for “significant
public interest” under 8 U.S.C. § 1182(d)(5)(A). Nicusor’s
parole later expired.
In February 2012, DHS took Nicusor into custody
pursuant to the 2002 removal order. Nicusor requested
asylum. DHS referred Nicusor to the IJ for asylum-only
proceedings. The referral lists Nicusor’s “Place and Manner
of Arrival” as “Seattle WA; Visa Waiver Program” on April
2, 2000. A separate box lists his arrival category as
“VWP/violator.”
NICUSOR-REMUS V. SESSIONS 7
In two separate orders, the BIA denied Nicusor all
requested relief. Nicusor petitions for review of these two
orders.
II.
We have an obligation to review our jurisdiction sua
sponte. Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763
(9th Cir. 2007). We have jurisdiction over “a final order of
removal.” 8 U.S.C. § 1252(a)(1). A removal order is an
order by an administrative officer “determining whether an
alien is deportable, concluding that the alien is deportable or
ordering deportation.” Id. § 1101(a)(47)(A). “[A]ny alien
ordered deported or removed . . . who has left the United
States, shall be considered to have been deported or removed
in pursuance of law, irrespective . . . of the place to which he
departed.” Id. § 1101(g).
III.
We must first determine which agency actions constitute
final removal orders for purposes of this Court’s jurisdiction.
The parties present two possible agency actions that may
constitute final removal orders: (1) Nicusor’s 2002 removal
order and (2) the BIA’s order denying Nicusor’s asylum
application in the asylum-only proceeding. We will conclude
that the 2002 removal order is a final removal order for
purposes of our jurisdiction because it is an order of an
administrative officer “determining whether an alien is
deportable, concluding that the alien is deportable or ordering
deportation.” 8 U.S.C. § 1101(a)(47)(A). We will conclude
that the BIA’s order denying Nicusor’s asylum application in
the asylum-only proceeding is not a final removal order
unless the 2002 removal order remains in effect.
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First, we must determine whether the 2002 removal order
is a final removal order over which this Court may have
jurisdiction. DHS determines whether a VWP entrant is
removable “without referral of the alien to an immigration
judge.” 8 C.F.R. § 217.4(b)(1). “Removal [of a VWP
entrant] by the district director is equivalent in all respects
and has the same consequences as removal after proceedings
[concluding that the alien is deportable or ordering
deportation].” Id. § 217.4(b)(2). DHS’s determination is an
order of an administrative officer “determining whether an
alien is deportable, concluding that the alien deportable or
ordering deportation.” See 8 U.S.C. § 1101(a)(47)(A).
Accordingly, DHS’s determination of a VWP entrant’s
removability constitutes an “order of removal.” This Court
has jurisdiction over Nicusor’s 2002 removal order so long as
it has not been executed.
Second, we must determine whether the BIA’s order
denying Nicusor’s asylum application in the asylum-only
proceeding is a final removal order over which this Court
may have jurisdiction. When DHS determines that a VWP
entrant is removable, the removal order “shall be effected
without referral of the alien to an immigration judge for a
determination of deportability,” unless the VWP entrant
applies for asylum. 8 C.F.R. § 217.4(b)(1). If the VWP
entrant applies for asylum, DHS must place the VWP entrant
in “asylum-only proceedings.” See id. The asylum-only
proceedings do not result in a removal order, although they
may affect the ability of DHS to execute the outstanding
removal order. Rather, the asylum-only proceedings behave
like a stay of enforcement of the removal order. If the IJ
grants the application for asylum or associated relief, DHS is
prohibited from effecting the removal order unless the alien’s
asylum status is terminated. Id. § 1208.22.
 NICUSOR-REMUS V. SESSIONS 9
Nicusor argues that the denial of his asylum application
in the asylum-only proceedings is a final removal order. This
argument conflates the “removal order” (i.e., DHS’s
determination that a VWP entrant is removable) with the
action that makes the removal order “final” (i.e., the IJ’s
denial of the VWP entrant’s only forms of relief). In Bao Tai
Nian v. Holder, this Court held that “the denial of [an alien’s]
petition for asylum and other relief in ‘asylum-only’
proceedings is the ‘functional equivalent’ of a final order of
removal” for purposes of determining jurisdiction. 683 F.3d
1227, 1230 (9th Cir. 2012). In a later case, this Court
explained that this conclusion “was motivated, at least in part,
to ensure the availability of such review.” Padilla-Ramirez
v. Bible, 882 F.3d 826, 835 (9th Cir. 2017) (citing Kanacevic
v. I.N.S., 448 F.3d 129, 135 (2d Cir. 2006)).
Bao Tai Nian and its progeny stand for the proposition
that the denial of an asylum application in asylum-only
proceedings “finalizes” DHS’s removal order of a VWP
entrant because the VWP entrant is entitled to no other forms
of relief. 683 F.3d at 1230. However, Bao Tai Nian assumes
that DHS has actually made a determination that the VWP
entrant is removable and has properly referred him or her to
asylum-only proceedings. DHS should not refer a VWP
entrant to asylum-only proceedings unless it has made the
initial determination that the VWP entrant is removable. See
8 C.F.R. § 217.4(b)(1). It is DHS’s initial determination that
constitutes the removal order over which this Court may have
jurisdiction.
The issue in Nicusor’s case is whether DHS made an
initial determination of his removability. The 2002 removal
order is the only determination of Nicusor’s removability.
When ICE apprehended Nicusor in 2012, it did not make an
10 NICUSOR-REMUS V. SESSIONS
additional determination of removability. If the 2002
removal order was executed when Nicusor left the country in
2004, then Nicusor is not subject to a final removal order, and
DHS erroneously referred Nicusor to asylum-only
proceedings by failing to make the initial determination of his
removability.
IV.
We must next decide whether the 2002 removal order was
executed when Nicusor left the United States in 2004. The
Attorney General does not dispute that Nicusor left the
United States in 2004. However, the Attorney General argues
that Nicusor’s “physical departure” did not constitute a “legal
departure.” We will conclude that Nicusor’s 2002 removal
order was executed when he left the United States and,
therefore, there is no final removal order over which we have
jurisdiction.
The starting point for interpreting a statute is the plain
meaning of its text. Altamirano v. Gonzales, 427 F.3d 586,
592 (9th Cir. 2005). A removal order is executed once an
alien “has left the United States.” 8 U.S.C. § 1101(g). The
statute makes no distinction between “physical” and “legal”
departures. See id. The plain statutory text clearly envisions
that any departure is sufficient to execute a removal order,
regardless of how long the alien remains outside the United
States or to where the alien departs.
This reading is consistent with precedent. In Aguilera-
Ruiz v. Ashcroft, a lawful permanent resident was ordered
deported but voluntarily left the United States to purchase
party supplies. 348 F.3d 835, 836 (9th Cir. 2003). This
Court held that his brief departure executed the removal
NICUSOR-REMUS V. SESSIONS 11
order. Id. Other courts have also concluded that a brief
departure executes a removal order. See Mansour v.
Gonzales, 470 F.3d 1194, 1194–1200 (6th Cir. 2006);
Aleman-Fiero v. INS, 481 F.2d 601, 601–02 (5th Cir. 1973).
The Attorney General relies on Handa v. Clark for the
proposition that a physical departure does not execute a
removal order. 401 F.3d 1129 (9th Cir. 2005). In Handa, a
VWP entrant attempted to cross into Canada. Id. at 1132.
Canada did not admit the VWP entrant, and he withdrew his
entry application and returned to the United States, where he
was apprehended upon his return. Id. On appeal, the VWP
entrant argued that he was no longer a VWP entrant because
he had departed the United States by physically crossing into
Canada. Id. at 1133. This Court held that “a mere physical
entry into Canada for a few seconds” could not remove the
VWP entrant from the strictures of the program. Id.
To reconcile Aguilera-Ruiz and Handa, the Attorney
General argues that a mere “physical departure” without a
“legal departure” does not execute a removal order. The
Attorney General’s reading would require an alien to be
legally admitted in a foreign country in order to execute the
removal order. Under this reading, an alien who left the
United States, illegally entered Canada, and remained there
for 10 years would not have executed the removal order.
Again, the statute makes no distinction between physical and
legal departures. See 8 U.S.C. § 1101(g). All the statute
requires to execute the removal order is for the alien to
“le[ave] the United States.” Id.
Handa applies to a unique set of facts. The alien in
Handa never “left the United States” because (1) he was
denied admission to Canada, (2) withdrew his request for
12 NICUSOR-REMUS V. SESSIONS
admission, and (3) immediately returned to the United States.
401 F.3d at 1132. By way of analogy, an individual who
steps onto the doorstep but finds that the front door is locked
has not left the outdoors. Aguilera-Ruiz is the rule; Handa is
the exception.
The rule applies here. There is no evidence that Nicusor
was denied admission into Mexico or that he encountered
Mexican immigration officials. When Nicusor returned, he
was paroled as an “alien applying for admission to the United
States.” 8 U.S.C. § 1182(d)(5)(A). Moreover, the FBI and
ICE agents clearly intended for Nicusor’s brief departure to
execute the removal order. We conclude that Nicusor
executed the 2002 removal order when he departed the
United States in 2004. Because there is no final removal order
in this case, this Court lacks jurisdiction to hear Nicusor’s
petition.
Petitioner’s pending motions to file supplemental briefs
are denied as moot. Respondent’s motion to strike is granted.
DISMISSED for lack of jurisdiction.