Manguriu v. Holder, Jr.

United States Court of Appeals
For the First Circuit
No. 14-1279
JOEL NJOROGE MANGURIU,
Petitioner,
v.
LORETTA E. LYNCH,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Jaime Jasso and Law Offices of Jaime Jasso on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, Shelley R.
Goad, Assistant Director, and Tim Ramnitz, Attorney, Office of
Immigration Litigation, U.S. Department of Justice, on brief for
respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
July 14, 2015
SELYA, Circuit Judge. As a general matter, judicial
review of a final order of an administrative agency is confined to
the four corners of the administrative record. See, e.g., Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Camp v.
Pitts, 411 U.S. 138, 142 (1973) (per curiam). That rule applies
with full force to judicial review of removal orders in the
immigration context. See 8 U.S.C. § 1252(b)(4)(A). But this
general rule admits of an exception when the reviewing court's
jurisdiction is called into question. As we explain below, this
is such a case.
The relevant facts are easily assembled. The
petitioner, Joel Njoroge Manguriu, a Kenyan national, entered the
United States on a student visa in 1999 and overstayed. He married
a U.S. citizen while here and his wife, Manuelita Lopez, filed an
I-130 visa petition in July of 2006, seeking to classify the
petitioner as an immediate relative (spouse) of a U.S. citizen.
Shortly thereafter, the petitioner applied for adjustment of his
immigration status based on Lopez's petition.
After due inquiry, the U.S. Citizenship and Immigration
Services (USCIS) denied Lopez's I-130 petition on the ground of
marriage fraud. That denial temporarily stymied the petitioner's
quest for adjustment of status.
On August 19, 2009, the Department of Homeland Security
(DHS) initiated removal proceedings. The petitioner conceded
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removability, but sought relief from removal under the Violence
Against Women Act (VAWA). See 8 U.S.C. § 1154(a)(1)(A)(iii). He
predicated his VAWA petition on a claim that he was the spouse of
an abusive U.S. citizen. At his request, the immigration judge
(IJ) held the removal proceeding in abeyance and, in December of
2010, the USCIS approved his VAWA petition. Based on this
approval, the petitioner asked the IJ to adjust his immigration
status to that of a lawful permanent resident.
After a hearing, the IJ denied the petitioner's
application for adjustment of status and, in March of 2012, ordered
him removed. Although the IJ found that the petitioner was
statutorily eligible for adjustment of status based on his approved
VAWA petition, she denied the requested relief as a matter of
discretion, finding that the petitioner had engaged in marriage
fraud, had misrepresented material facts to the USCIS, had given
false testimony in the removal proceeding, and had not consistently
paid income taxes owed.
On February 26, 2014, the Board of Immigration Appeals
(BIA) affirmed the IJ's decision. This timely petition for
judicial review followed.
While the petition for judicial review was pending, a
parallel proceeding developed: the USCIS sent notice that it
intended to revoke its approval of the petitioner's VAWA petition.
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The petitioner did not respond and, on June 20, 2014, the USCIS
revoked the petition.
Before us, the petitioner argues that the IJ committed
legal error by inquiring into the legitimacy of his marriage. In
mounting this argument, however, his brief, filed on June 2, 2014,
does not mention the revocation of his VAWA petition. The
government does not accept this narrow view of the case: its brief
asserts in part that the revocation renders the petition for
judicial review moot. Its thesis is that even if the IJ erred,
the petitioner can no longer obtain meaningful relief because his
lack of an approved visa petition precludes adjustment of status.
The petitioner's reply brief takes issue with this assertion,
questioning the effectiveness of the purported revocation. In
this regard, the petitioner claims that the USCIS sent the notice
of intent to revoke only to the address of his previous attorney
even though it had on file both his home address and the address
of his current attorney.
The threshold question in this case is whether we can
consider the USCIS's revocation of the VAWA petition ─ an action
that took place outside the confines of the administrative record.
We conclude that we can.
The Supreme Court has held that federal courts
ordinarily must answer jurisdictional questions before tackling
the merits of a case. See Steel Co. v. Citizens for a Better
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Env't, 523 U.S. 83, 93-95 (1998). Events that occur while an
appeal is pending can disable a federal court from granting
effective relief and, thus, render a case moot. See Church of
Scientology v. United States, 506 U.S. 9, 12 (1992). Because
mootness implicates a court's jurisdiction, the court can properly
look to facts outside the record so long as those facts are
relevant to a colorable claim of mootness. See, e.g., Haley v.
Pataki, 60 F.3d 137, 140 n.1 (2d Cir. 1995); Clark v. K-Mart Corp.,
979 F.2d 965, 967 (3d Cir. 1992); Cedar Coal Co. v. United Mine
Workers of Am., 560 F.2d 1153, 1166 (4th Cir. 1977). This
principle holds true where, as here, a court is tasked with
conducting judicial review of agency action. See, e.g., Maldonado
v. Lynch, 786 F.3d 1155, 1160-61 (9th Cir. 2015) (considering
events postdating BIA decision in evaluating claim of mootness);
Qureshi v. Gonzales, 442 F.3d 985, 988-90 (7th Cir. 2006)(similar).
We note, moreover, that courts normally can take
judicial notice of agency determinations. See, e.g., Aguilar v.
U.S. ICE, 510 F.3d 1, 8 n.1 (1st Cir. 2007); Fornalik v. Perryman,
223 F.3d 523, 529 (7th Cir. 2000); Furnari v. Warden, 218 F.3d
250, 255-56 (3d Cir. 2000). Along this line, courts of appeals
have routinely taken judicial notice of agency actions in
immigration proceedings even though those actions are outside the
boundaries of the administrative record. See, e.g., Dent v.
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Holder, 627 F.3d 365, 371-72 (9th Cir. 2010); Opoka v. INS, 94
F.3d 392, 394-95 (7th Cir. 1996).
These authorities illuminate our path. We hold that for
the purpose of resolving a colorable claim that a petition for
judicial review of agency action has become moot, a court may
consider administrative actions in other proceedings. It follows
that we may consider the USCIS's revocation of the petitioner's
VAWA petition in determining whether the instant petition for
judicial review has become moot.
This determination does not end our inquiry: the
question remains whether the instant petition for judicial review
has become moot. The fact that we can take note of the USCIS's
revocation of the petitioner's VAWA petition does not, without
more, validate the government's claim of mootness. Only when the
pertinent facts are undisputed and the supplemented record allows
for a conclusive determination of mootness can a reviewing court
dispose of the matter without further ado. See Clark, 979 F.2d at
967. Where pertinent facts are in dispute or additional
factfinding is needed to determine whether the case has actually
become moot, remand is required. See Johnson v. N.Y. State Educ.
Dep't., 409 U.S. 75, 75-76 (1972) (per curiam) (remanding for
further factfinding in order to resolve claim of mootness); City
of Waco v. EPA, 620 F.2d 84, 87 (5th Cir. 1980) ("This case may
well be moot . . . , but the present record is inadequate to enable
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us to make such a determination. . . . [T]he agency should consider
the question of mootness on remand."). So, too, changed
circumstances that are either disputed or unclear may require
remand. See Bryson v. Shumway, 308 F.3d 79, 90-91 (1st Cir. 2002).
In the case at hand, it is undisputed that the USCIS
revoked the petitioner's VAWA petition on the basis of marriage
fraud. The rub, however, is that the petitioner claims that the
USCIS did not properly notify him of the revocation proceeding: it
allegedly notified his former attorney even though it had his
current attorney's address on file. Moreover, the USCIS
purportedly knew the petitioner's then-current home address, yet
never sent notice to that address. The petitioner's claim that
the revocation is ineffective for want of proper notice is
sufficient (though barely) to raise a factual question requiring
remand.1
DHS regulations require the agency to give an alien
notice of proceedings to revoke a visa petition. See 8 C.F.R.
§ 205.2(b) (providing that "[r]evocation . . . will be made only
on notice" and that the alien "must be given the opportunity to
offer evidence . . . in opposition to the grounds alleged for
1We say "barely" because the petitioner has not alleged in
any of his filings that he was unaware of the revocation notice.
Nor has the petitioner, despite receiving the government's brief
in this matter over one year ago, given any indication of
initiating a challenge to the revocation.
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revocation"). It is an abecedarian principle of administrative
law that agencies must comply with their own regulations. See
Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641, 654
(1990). This principle is applicable in the context of proceedings
to revoke a visa petition. See Kurapati v. U.S. BCIS, 775 F.3d
1255, 1262 (11th Cir. 2014).
Here, the record is tenebrous as to potentially material
facts. We do not know, for example, exactly what steps the USCIS
took to notify the petitioner of the institution of the revocation
proceeding; what the agency's records showed at the time about the
petitioner's legal representation; or whether this petitioner had
actual notice of the proceeding. This lack of clarity dictates
our course of action. Although we take no view as to the merit
(or lack of merit) of the petitioner's allegations, the validity
of the petition revocation is sufficiently unclear that we deem it
prudent to remand to the BIA for further proceedings. The BIA,
either itself or through a further remand, shall make due inquiry
and determine, among other things, whether the revocation of the
VAWA petition was lawfully accomplished and, if so, whether the
BIA decision that is the subject of this petition for judicial
review is now moot.
We retain appellate jurisdiction pending receipt of the
BIA's report of its supplemental finding. The BIA is directed to
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furnish this court with written status reports at intervals of 90
days, commencing 90 days from the date of this opinion.
So Ordered.
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