Panova-Bohannan v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 11, 2003
Charles R. Fulbruge III
Clerk
No. 02-60962
Summary Calendar
ANGELICA PANOVA-BOHANNAN,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A77-802-997)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner Angelica Panova-Bohannan (“Panova”), a native and
citizen of Uzbekistan, petitions this court for review of the Board
of Immigration Appeal’s (“BIA”) affirmance of the Immigration
Judge’s (“IJ”) final order of removal. Panova concedes that she is
removable but argues that the IJ erred in denying her contested
motion to terminate the removal proceedings to allow her to apply
for an adjustment of status.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
On a petition for review of a BIA decision, we review factual
findings for substantial evidence and questions of law de novo.
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). “We
accord deference to the BIA’s interpretation of immigration
statutes unless the record reveals compelling evidence that the
BIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). Under this standard, we shall not substitute
our judgment for that of the BIA, but we must reject any
interpretation by the BIA that is arbitrary, capricious, or
manifestly contrary to a statute. Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837, 844 (1984). We generally
review the decision of the BIA, but when, as here, the BIA adopts
the IJ’s decision without opinion, we review the decision of the
IJ. Mikhael, 115 F.3d at 302.
The BIA has consistently held that “so long as the enforcement
officials of the Service choose to initiate proceedings against an
alien and to prosecute those proceedings to a conclusion, the
immigration judge and the Board must order deportation if the
evidence supports a finding of deportability on the ground
charged.” In re Yazdani, 17 I. & N. Dec. 626, 630 (BIA 1981); see
also In re Singh, 21 I. & N. Dec. 427, 435 (BIA 1996); In re Wong,
13 I. & N. Dec. 701, 703 (BIA 1971). Panova’s argument to the
contrary is without merit. It is true that the BIA terminated
removal proceedings after aliens were found to be removable by
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immigration judges in the two cases Panova has cited, In re
Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000) and In re Perez, 22
I. & N. Dec. 1325 (BIA 2000), but the terminations in those cases
were not discretionary. Rather, they were based on BIA
determinations that the aliens in question were not, in fact,
removable. See id.Under the ubiquitous Chevron analysis, the BIA’s position is
entitled to deference. Nothing in the relevant statutes and
regulations gives immigration judges or the BIA the discretionary
authority to terminate removal proceedings when the alien is
determined to be removable on the grounds charged by the INS. See
8 U.S.C. § 1229a; 8 C.F.R. §§ 1003.1-1003.109. Immigration law on
this point is mandatory. “At the conclusion of the [removal]
proceeding the immigration judge shall decide whether an alien is
removable from the United States.” 8 U.S.C. § 1229a(c)(1)(A)
(emphasis added). The Attorney General is given wide discretion to
decide whether to prosecute removal proceedings. See 8 U.S.C. §
1252(g). Immigration regulations give enforcement officials, not
immigration judges or the BIA, discretionary authority to terminate
removal proceedings or move for the termination of removal
proceedings. See 8 C.F.R. § 1239.2; see also 8 C.F.R. § 1239.1.
In particular situations, the regulations allow immigration judges
to terminate removal proceedings when an alien has a pending
naturalization application, but provide that “in every other case,
the removal hearing shall be completed as promptly as possible.”
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8 C.F.R. § 1239.2(f). Accordingly, the BIA’s position is not
arbitrary, capricious, or manifestly contrary to the statute and is
entitled to deference. See Lopez-Telles v. INS, 564 F.2d 1302,
1304 (9th Cir. 1977); see also Chevron, 467 U.S. at 844. As the IJ
did not have discretionary authority to terminate the removal
proceedings against Panova, he did not err in denying her motion to
terminate them.
Panova’s petition for review is
DENIED.
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