Bronisz, Robert v. Ashcroft, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4264
ROBERT BRONISZ,
Petitioner,
v.
JOHN D. ASHCROFT,
United States Attorney General,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A29-646-906
____________
ARGUED MAY 19, 2004—DECIDED AUGUST 5, 2004
____________
Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Robert Bronisz, a native and citizen
of Poland, seeks review of an order of the Board of
Immigration Appeals (“BIA”) denying him suspension of
deportation and voluntary departure. For the reasons set
forth in the following opinion, we dismiss Mr. Bronisz’s
petition for lack of jurisdiction.
2 No. 02-4264
I
BACKGROUND
A. Asylum Proceedings
Mr. Bronisz arrived as a visitor to the United States
in September 1989. After he overstayed his visa, the
Immigration and Naturalization Service (“INS”) initiated
deportation proceedings against him in February 1990. Mr.
Bronisz conceded deportability but applied for political
asylum; an immigration judge (“IJ”) rejected his claim but
allowed him to depart voluntarily. Mr. Bronisz appealed
this decision to the BIA, which dismissed his appeal in
October 1991 after he failed to submit a brief. Mr. Bronisz
did not leave the country but instead remained and started
a marble and granite installation company in Chicago,
Illinois.
B. NACARA Proceedings
In 1998, Mr. Bronisz filed a motion to reopen his case in
order to apply for suspension of deportation pursuant to the
Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. 105-100, 111 Stat. 2193 (1998). Before
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110
Stat. 3009-575, an alien could apply for suspension of
deportation if he or she could show seven years of continu-
ous presence in the United States, good moral character
during that period, and extreme hardship to either the alien or
to his or her spouse, parent, or child if removed. Immigra-
tion and Nationality Act (“INA”) § 244, codified at 8 U.S.C.
§ 1254(a) (1994) (repealed). IIRIRA replaced suspension of
deportation with the more stringent cancellation of removal,
IIRIRA § 304(a), 110 Stat. at 3009-594, codified at 8 U.S.C.
No. 02-4264 3
§ 1229b(b) (2004), and instituted the “stop-time” rule, which
terminates the period of continuous presence upon the
service of a notice to appear or order to show cause, id., 110
Stat. at 3009-595, codified at 8 U.S.C. § 1229b(d) (2004).
Two years later, NACARA amended IIRIRA by exempt-
ing certain aliens, including those of Polish origin, from the
application of the stop-time rule. See NACARA § 203(a), 111
Stat. at 2196-97 (amending IIRIRA § 309(c)(5)(C)(i), 110 Stat.
at 3009-627). By virtue of this exemption, certain aliens who
were placed in deportation proceedings before April 1, 1997,
became eligible for suspension of deportation, id., while others
placed in removal proceedings on or after April 1, 1997,
became eligible for cancellation of removal, id. § 203(b), 111
Stat. at 2198-99 (amending IIRIRA § 309(f)(1), 110 Stat. 3009-
627). See 143 Cong. Rec. 25,544 (1997). For those aliens, like
Mr. Bronisz, whose proceedings already had terminated,
NACARA also allowed them to file one motion to reopen to
apply for relief. NACARA § 203(c), 111 Stat. at 2199 (amend-
ing IIRIRA § 309(g), 110 Stat. 3009-627); see 8 C.F.R. § 3.43(b)
(2002); 143 Cong. Rec. 25,544 (1997). The INS did not oppose
Mr. Bronisz’s motion to reopen his deportation proceedings,
the motion was granted, and a hearing was held in August
2000.
Before the IJ, Mr. Bronisz argued that, if removed, he
would suffer extreme hardship because he had lived in the
United States for a substantial portion of his life and owned
property and a business here. He said that he feared losing
much of his investment in both his business and real estate
holdings and stressed that his company generates substan-
tial revenues and employs almost a dozen persons who
could lose their jobs if he is forced to sell. Mr. Bronisz ac-
knowledged that his mother, father and older brother still
live in Poland but suggested that finding work there would
be difficult because he has no transferable employment
skills.
4 No. 02-4264
In an oral decision, the IJ found that, although Mr. Bronisz
met the seven-year and good moral character requirements
for suspension of deportation, he had not demonstrated that
he would suffer extreme hardship if removed. The IJ
reasoned that, even if Mr. Bronisz is forced to sell his
property and business, his considerable assets “should be
able to facilitate his transition to life in Poland.” R.37. The IJ
denied him suspension of deportation, as well as voluntary
departure because of his earlier failure to depart and
ordered him deported to Poland pursuant to the charge in
his original 1990 order to show cause. In November 2002, the
BIA summarily affirmed, see 8 C.F.R. § 3.1(e)(4); Mr. Bronisz
now petitions this court for review.
II
DISCUSSION
Mr. Bronisz challenges the IJ’s conclusion that he did not
establish extreme hardship. He argues that his removal
would have a “devastating effect . . . on his employees and
on the community” because he has invested heavily in both
through his business. Petitioner’s Br. at 8. He contends that
the IJ failed to consider his particular circumstances in light
of what he describes as NACARA’s “ameliorating” purpose.
Id. at 9. Mr. Bronisz also challenges the IJ’s decision not to
grant him voluntary departure.
The Government contends that we lack jurisdiction to
review the IJ’s decision. According to the Government, Mr.
Bronisz is subject to IIRIRA § 309(c)(4)(E), which limits
judicial review of certain discretionary decisions under the
INA. See IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626. Because
the decision whether to grant suspension of deportation or
voluntary departure is discretionary, the Government argues,
we lack jurisdiction over Mr. Bronisz’s petition for review.
No. 02-4264 5
A. IIRIRA and Judicial Review
Although the permanent provisions of IIRIRA did not
take effect until April 1, 1997, IIRIRA nonetheless sets out
certain rules that apply to proceedings commenced before
1
that date. See IIRIRA § 309(a), 110 Stat. at 3009-625. In other
words, with few exceptions, aliens whose deportation
proceedings commenced before April 1, 1997, continue to be
governed by the law as it stood before IIRIRA’s passage. See
id. One of these exceptions, IIRIRA § 309(c)(4), applies to a
case commenced before April 1, 1997, and “in which a final
order of exclusion or deportation is entered more than 30
days after the date of enactment of this Act [September 30,
2
1996].” Id. § 309(c)(4), 110 Stat. at 3009-626. For aliens who
1
IIRIRA § 309(a) reads in relevant part:
(a) In General.—Except as provided in this section and sections
303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this subdivision, this
subtitle and the amendments made by this subtitle shall take
effect on the first day of the first month beginning more than 180
days after the date of the enactment of this Act (in this title
referred to as the “title III-A effective date”).
IIRIRA § 309(a), 110 Stat. 3009-625.
2
IIRIRA § 309(c)(4) reads in relevant part:
(c) Transition for Certain Aliens.—
...
(4) Transitional Changes in Judicial Review.—In the case in
which a final order of exclusion or deportation is entered more
than 30 days after the date of the enactment of this Act [Sept. 30,
1996], notwithstanding any provision of section 106 of the
Immigration and Nationality Act (as in effect as of the date of the
enactment of this Act) to the contrary—
...
(continued...)
6 No. 02-4264
have a final order of deportation entered against them after
October 30, 1996, § 309(c)(4) dictates that “there shall be no
appeal of any discretionary decision under section 212(c),
212(h), 212(i), 244, or 245 of the Immigration and National-
ity Act (as in effect as of the date of enactment of this Act).”
Id. § 309(c)(4)(E), 110 Stat. at 3009-626. Mr. Bronisz does not
contest that his applications for suspension of deportation
and voluntary departure were requests for relief under the
3
old (pre-IIRIRA) § 244 of the INA. See Useinovic v. INS, 313
F.3d 1025, 1033-35 (7th Cir. 2001) (discussing relationship
between NACARA and INA § 244); see also Tamas-Mercea v.
Reno, 222 F.3d 417, 427 (7th Cir. 2000) (considering volun-
tary departure); Pilch v. INS, 129 F.3d 969, 970-71 (7th Cir.
1997) (discussing suspension of deportation). Therefore, if
the November 2002 order is a “final order of exclusion or
deportation entered more than 30 days after” September 30,
1996, in a case commenced before April 1, 1997, we lack
jurisdiction over Mr. Bronisz’s petition for review. See
IIRIRA § 309(c)(4), 110 Stat. at 3009-626.
In this case, the IJ ordered Mr. Bronisz deported pursuant
to the original charge in his order to show cause. The parties
do not dispute, and we agree, that this is a “final order of
2
(...continued)
(E) there shall be no appeal of any discretionary decision
under section 212(c), 212(h), 212(i), 244, or 245 of the
Immigration and Nationality Act (as in effect as of the date
of enactment of this Act).
IIRIRA § 309(4), 110 Stat. 3009-625 (as amended by 110 Stat. 3657).
3
We are puzzled that Mr. Bronisz applied for voluntary de-
parture after his proceedings were reopened. NACARA allows
aliens to reopen proceedings to apply for suspension of deporta-
tion, not voluntary departure. See NACARA § 203(c), 111 Stat. at
2199 (amending IIRIRA § 309(g), 110 Stat. at 3009-627).
No. 02-4264 7
deportation.” See 8 U.S.C. § 1101(a)(47)(A) & (B) (“The term
‘order of deportation’ means the order . . . concluding that
the alien is deportable or ordering deportation.”). What
remains to be seen is whether the November 2002 order is
an order entered in a case that commenced before April 1,
1997.
B. Motion to Reopen
There is some disagreement among the circuits as to
whether the filing of a motion to reopen is itself part of the
underlying immigration proceedings or more appropriately
characterized as the commencement of a new proceeding
altogether. Compare Aguilera v. Kirkpatrick, 241 F.3d 1286,
1290 n.2 (10th Cir. 2001) (stating that a motion to reopen is
part of earlier proceedings); Stewart v. INS, 181 F.3d 587, 593
(4th Cir. 1999) (same); Vargas v. INS, 938 F.2d 358, 362 (2d
Cir. 1991) (“A motion to reopen or to reconsider is not a
request for a new decision.”), with Anin v. Reno, 188 F.3d
1273, 1275 n.2 (11th Cir. 1999) (noting circuit split but de-
clining to adopt position), and Wright v. Ouellette, 171 F.3d
8, 12 (1st Cir. 1999) (new proceeding). The First Circuit alone
has held that the filing of a “motion to reopen is more akin
to starting a new proceeding.” Wright, 171 F.3d at 12. We
never have acknowledged explicitly and rejected the view
of the First Circuit; however, we have implicitly sided with
the majority of circuits. We have observed that the filing of
a motion to reopen is part of the earlier immigration
proceedings. See Nwaokolo v. INS, 314 F.3d 303, 306 (7th Cir.
2002) (per curiam) (“[The petitioner’s] motion to reopen is
part and parcel of her deportation proceedings.”); Henry v.
INS, 8 F.3d 426, 438 (7th Cir. 1993) (“We therefore agree . .
. that a motion to reopen merely revives the earlier [pro-
ceedings] and does not constitute an entirely new request
for discretionary relief.”).
8 No. 02-4264
It does not necessarily follow, however, that the proceed-
ings resulting from a successful motion to reopen are part of
the earlier immigration proceedings. Although we have
found no case that speaks explicitly on this issue, we believe
some guidance can be gleaned from the manner in which
courts have treated motions to reopen. The Supreme Court
has analogized motions to reopen to motions in civil cases
made under Federal Rule of Civil Procedure 60(b). See Stone
v. INS, 514 U.S. 386, 405 (1995); see also Henry, 8 F.3d at 438
(“[Motions to reopen] are thus not unlike those under Fed.
R. Civ. P. 60(b), in which parties seek relief from a final
judgment to present newly discovered evidence.”); White v.
INS, 6 F.3d 1312, 1315 (8th Cir. 1993) (motions to reopen or
reconsider “are more analogous to motions for relief from
judgment for mistake or for newly discovered evidence
made pursuant to Federal Rule of Civil Procedure 60(b)”).
Already we have carried the 60(b) analogy, albeit implicitly,
to the denial of a motion to reopen. Just as the denial of a
Rule 60(b) motion is a final appealable order, see SEC v. Van
Waeyenberghe, 284 F.3d 812, 814 (7th Cir. 2002) (per curiam),
we have held that the denial of a motion to reopen is a final
order independently subject to review like any other final
order of deportation or removal, see Chow v. INS, 113 F.3d
659, 663-64 (7th Cir. 1997), abrogated on other grounds by
4
LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998). Thus, had
the IJ denied Mr. Bronisz’s motion to reopen, that decision,
4
Judicial review of such an order assumes that the immigration
laws provide for subject matter jurisdiction. Many courts, in-
cluding our own, have observed that, when Congress limits the
jurisdiction to review final orders of deportation or removal, it
also limits the jurisdiction to review denials of motions to reopen
or reconsider. See Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir.
2004); Stewart v. INS, 181 F.3d 587, 593 (4th Cir. 1999); Sarmadi v.
INS, 121 F.3d 1319, 1321-22 (9th Cir. 1997).
No. 02-4264 9
once final, would be a “final order of deportation” within
the meaning of § 309(c)(4).
We see no reason, then, to discontinue the 60(b) analogy
in examining the proceedings that follow the grant of a
motion to reopen. When a district court grants a Rule 60(b)
motion, the effect is to vacate the previous judgment in the
case. See Fed. R. Civ. P. 60(b); Boyko v. Anderson, 185 F.3d
672, 673-74 (7th Cir. 1999). Consequently, the previously
filed case is reinstated and goes forward from that point. See
McCormick v. City of Chicago, 230 F.3d 319, 326-27 (7th Cir.
2000) (treating motion to reinstate case as motion under
Rule 60(b)); see also Rodriguez v. Mitchell, 252 F.3d 191, 198
(2d Cir. 2001) (noting that the grant of a Rule 60(b) motion
in habeas corpus case “would merely reinstate the previ-
ously dismissed petition for habeas [corpus], opening the
way for further proceedings”); see also 12 James Wm. Moore,
et al., Moore’s Federal Practice § 60.61 at 60-194 (3d ed. 2004)
(“A Rule 60(b) motion is considered a continuation of the
original proceeding.”). We think that the same result obtains
when a motion to reopen is granted in the immigration
context. See Fedorca v. Perryman, 197 F.3d 236, 241 (7th Cir.
1999) (“If Fedorca’s motion to reopen his deportation
proceedings had been successful, as it initially was, it would
have abrogated the 1995 deportation order.”). Indeed, the
Ninth Circuit already has adopted this approach. See Lopez-
Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (“The BIA’s
granting of the motion to reopen means there is no longer a
final decision to review.”). We therefore make explicit what
we stated in dicta in Fedorca and hold that the grant of a
motion to reopen vacates the previous order of deportation
or removal and reinstates the previously terminated immi-
gration proceedings.
With that in mind, we return to the question posed ear-
lier—whether the order entered against Mr. Bronisz in
10 No. 02-4264
November 2002 is a final order of deportation entered after
October 30, 1996, in a case commenced before April 1, 1997.
We agree with the Government that it is. In November 2002,
the BIA affirmed the IJ’s decision denying Mr. Bronisz
suspension of deportation and voluntary departure, and
ordering him deported pursuant to the order to show cause
served on him in 1990. Thus, Mr. Bronisz is subject to a final
order of deportation entered after October 30, 1996. And, as
we have just explained, this order was entered in a case
commenced before April 1, 1997, because Mr. Bronisz’s
applications for discretionary relief—submitted after his
successful motion to reopen—were part of his original
immigration proceedings. The grant of his motion to reopen
allowed the original proceedings to go forward as if there
never had been an order of deportation entered in October
1991. Thus, we cannot pretend, as Mr. Bronisz proposes we
should, that the grant of the motion to reopen placed him
back in proceedings that ended with the October 1991 order.
That order was effectively vacated by his successful motion
to reopen. Therefore, because Mr. Bronisz’s November 2002
order is a final order of deportation entered after October
30, 1996, in a case commenced before April 1, 1997, and
concerns discretionary relief under INA § 244, IIRIRA
§ 309(c)(4)(E) operates to bar our review.
Conclusion
For the foregoing reasons, the petition for review is
dismissed for lack of jurisdiction.
DISMISSED
No. 02-4264 11
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-5-04