Potdar, Madhumilind v. Holder Eric H.

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2441
M ADHUMILIND P OTDAR,
Petitioner,
v.
M ICHAEL B. M UKASEY,
United States Attorney General,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A93-042-676
A RGUED F EBRUARY 28, 2007—D ECIDED O CTOBER 10, 2007
P ETITION FOR R EHEARING E N B ANC
F ILED N OVEMBER 27, 2007—D ECIDED JUNE 26, 2008
O N M OTION TO R EOPEN
D ECIDED D ECEMBER 16, 2008
Before R IPPLE, M ANION and K ANNE, Circuit Judges.
2 No. 06-2441
R IPPLE, Circuit Judge. Madhumilind Potdar filed a
petition for rehearing following this court’s dismissal of
his petition for review of an order of the Board of Im-
migration Appeals (“BIA”) for lack of subject matter
jurisdiction. We granted the petition, limited to the fol-
lowing issue: Whether this court has jurisdiction to
review the BIA’s order concerning the motion to reopen
because this case falls within the exception to Iqbal Ali v.
Gonzales, 502 F.3d 659 (7th Cir. 2007), cert. denied, Ali v.
Mukasey, 128 S. Ct. 1870 (2008), set forth in Subhan v.
Ashcroft, 383 F.3d 591 (7th Cir. 2004)? We now vacate our
prior judgment and hold that this court has jurisdiction
to review the BIA’s order. Furthermore, we reverse the
judgment of the BIA and remand for further proceedings
consistent with this opinion.
I
Mr. Potdar’s claim for relief rests on a fairly convoluted
set of facts, which are set forth fully in our prior opinion,
see Potdar v. Keisler, 505 F.3d 680 (7th Cir. 2007), and,
therefore, are recounted only briefly here.
Mr. Potdar, a native and citizen of India, first entered the
United States without authorization in 1981. In 1994, he
applied for legalization benefits under the Immigration
Reform and Control Act. While his application was pend-
ing, Mr. Potdar needed to return to India to attend a
family funeral; he sought and was granted advance
parole. After a month in India, Mr. Potdar returned to the
United States. However, shortly thereafter and for un-
No. 06-2441 3
known reasons, the INS revoked Mr. Potdar’s parole
and placed him in exclusion proceedings.
Before the Immigration Judge (“IJ”), Mr. Potdar moved
to terminate the proceedings on the ground that, because
he was a legalization applicant who had obtained ad-
vance parole, he was not an “arriving alien” subject to
exclusion proceedings. However, Mr. Potdar was unable to
locate evidence of his advance parole grant from the
Immigration and Naturalization Service. The IJ agreed with
the Government that the burden was on Mr. Potdar to put
forth such evidence, and, based on this determination, the
IJ concluded that Mr. Potdar’s motion to terminate ex-
clusion proceedings could not be granted. The IJ further
concluded that Mr. Potdar should be excluded on three
separate grounds: that he had committed visa fraud, that
he was an arriving alien not in possession of a valid
immigrant visa and that he was an arriving alien not
in possession of a valid nonimmigrant visa.
The BIA affirmed the IJ’s decision on different grounds.
Unlike the IJ, the BIA acknowledged that Mr. Potdar indeed
had been paroled into the United States, but further noted
that his parole had been revoked. This action returned Mr.
Potdar to the status that he had held before he was paroled,
i.e., an alien seeking to enter the United States. Turning to
the grounds for exclusion, the BIA disagreed with the IJ that
the charges of fraud had been sustained or that the failure
to produce a nonimmigrant visa was an adequate ground
of excludability. However, because Mr. Potdar was seeking
legalization, the BIA concluded, he had immigrant intent,
and, therefore, he was excludable based on his failure to
present an immigrant visa.
4 No. 06-2441
Mr. Potdar did not seek review of the BIA’s final order of
exclusion. Instead, he pursued other avenues of relief: His
employer sponsored him for an employment-based visa
and submitted a labor certification application on his
behalf. After this application was approved, the employer
petitioned for an immigrant visa on his behalf, and
Mr. Potdar applied for adjustment of status.
Mr. Potdar then moved to reopen proceedings before
the BIA so that his pending applications for an immigrant
worker visa and adjustment of status could be processed.
The Government did not respond to the motion. The BIA
ruled in Mr. Potdar’s favor and granted his motion to
reopen; it then remanded the case to the IJ. When the
case was before the IJ on remand, Mr. Potdar moved to
terminate exclusion proceedings. The IJ, however, con-
strued Mr. Potdar’s motion to reopen as a request for
adjustment of status. The IJ concluded that he lacked
jurisdiction to entertain an application for adjustment of
status for an alien in Mr. Potdar’s circumstances and
certified, sua sponte, the record to the BIA. The BIA
agreed with the IJ and held that it had “erroneously
granted” Mr. Potdar’s motion. It therefore vacated its
decision granting the motion to reopen. Mr. Potdar peti-
tioned this court for review.
II
In our earlier decision, we first concluded that the BIA’s
order reopening the case did not resurrect jurisdiction
over the issues underlying the initial exclusion order. We
stated that the BIA “reopened to consider new evidence
No. 06-2441 5
that, despite Mr. Potdar’s excludability, he may have been
entitled to relief from exclusion.” Potdar, 505 F.3d at 683.
Consequently, it was only issues related to the motion
to reopen that were properly before us.
We then determined that “[t]he gravamen of Mr.
Potdar’s request to the Board was that the part of the
immigration agency responsible for adjudication of his
applications ought to be given an opportunity to act prior to
his removal from the United States.” Id. at 684. In essence,
Mr. Potdar’s request to the IJ “amounted to a request for
a continuance.” Id. However, “[d]espite the context in
which the case was reopened, the IJ nevertheless con-
strued Mr. Potdar’s submission as a request that the IJ grant
his application for adjustment of status in exclusion proceed-
ings.” Id. We further explained that, on appeal, the BIA did
not correct the error but “simply concurred with the IJ that
the immigration courts lacked jurisdiction over an applica-
tion, which, so far as the record reveals, never was filed
with the immigration court.” Id.Although we believed that the BIA and the IJ errone-
ously concluded that Mr. Potdar was seeking an adjust-
ment of status from the IJ, we nevertheless dismissed
Mr. Potdar’s petition for review. Having characterized
Mr. Potdar’s motion as a motion to continue, we con-
cluded that “we have no jurisdiction to review the denial
of the continuance in Mr. Potdar’s case.” Id. at 685 (citing
Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007)).1
1
In Iqbal Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), cert. denied,
Ali v. Mukasey, 128 S. Ct. 1870 (2008), we held that the jurisdic-
(continued...)
6 No. 06-2441
III
Mr. Potdar petitioned for rehearing and raised one
argument that we believed deserved closer scrutiny.
Mr. Potdar claimed that this court had jurisdiction to
review the BIA’s order concerning the motion to reopen
because his case falls within the exception to Ali set forth
in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). Subhan
preceded Ali and held that, even assuming that 8 U.S.C.
§ 1252(a)(2)(B)(ii) “generally bars judicial review of a
continuance granted by an immigration judge in a removal
proceeding,” Congress did not intend “to entitle illegal
aliens to seek an adjustment of status upon the receipt
of certificates from the state and federal labor depart-
ments” and “at the same time also intend[] section
1252(a)(2)(B)(ii) to place beyond judicial review decisions
by the immigration authorities that nullif[y] the statute.”
Subhan, 383 F.3d at 595. Consequently, in Subhan, we
concluded that the BIA violated Section 1255 when it
denied the petitioner’s motion to continue for purposes of
seeking an adjustment of status “without giving a reason
consistent with the statute (indeed without giving any
1
(...continued)
tional bar contained in 8 U.S.C. § 1252(a)(2)(B)(ii) (barring
appellate review of immigration decisions “the authority for
which is specified under this subchapter to be in the discretion
of the Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 1158(a) of this
title”) applied to motions to continue because those are, by
regulation, discretionary decisions that are based on
and implement the Immigration and Nationality Act.
No. 06-2441 7
reason).” Id. When we issued our opinion in Ali, which
decided the jurisdictional issue that Subhan had assumed
arguendo, we preserved the “exception noted in Subhan.”
Ali, 502 F.3d at 664.
In his petition, Mr. Potdar claimed that the exception
set forth in Subhan applied to his motion to continue: “As
in Subhan, the reasons given by the Immigration court and
the Board were not responsive to Petitioner’s motion.”
Petition for Rehearing at 6. Because Ali was issued in
September 2007, a month before our prior decision in
Mr. Potdar’s case, the parties did not have the opportunity
either to comment on the applicability of Ali or Subhan
before we invoked Ali to dismiss Mr. Potdar’s petition.
Consequently, we granted Mr. Potdar’s petition for
rehearing limited to the issue of whether the Subhan
exception applied to Mr. Potdar and requested supple-
mental briefing by the parties on this issue.
IV
At this juncture, both parties agree that, because
Mr. Potdar’s petition for rehearing raises a question of
law—the applicability of Subhan—we have jurisdiction to
consider that limited issue. See Petitioner’s Supp. Br. at 1;
Respondent’s Supp. Br. at 8.
The parties’ agreement, however, ends with the juris-
dictional issue. Mr. Potdar argues that the Subhan excep-
tion applies because the BIA’s denial of his motion to
continue effectively prevented him from exercising his
statutory right to apply for adjustment of status. The
8 No. 06-2441
Government, however, argues that “allow[ing] administra-
tive adjudication to proceed did not nullify” Mr. Potdar’s
statutory right because he was not “in jeopardy of immi-
nent removal” and because, after the BIA’s denial of Mr.
Potdar’s motion, his visa application was considered
and denied. Respondent’s Supp. Br. at 14-15.2
We cannot accept either of the Government’s arguments.
With respect to the first argument, Mr. Potdar was served
with a “bag and baggage” letter dated October 11, 2006,
requiring him to report for deportation on November 7,
2006. The only reason that Mr. Potdar was not deported
was that, on November 3, 2006, this court issued a stay
of removal pending resolution of his appeal.
We turn, therefore, to the Government’s contention that,
at this point, Mr. Potdar’s request for a continuance is
moot. The Government explains that Mr. Potdar sought
a continuance to allow his adjustment of status applica-
2
The Government also argues that Mr. Potdar does not fall
within the Subhan exception because he did not request explic-
itly a continuation, as opposed to a cessation, of administrative
proceedings. However, we already have explained that, given
the context of Mr. Potdar’s request, the BIA should have
construed Mr. Potdar’s motion as a motion to continue. See
Potdar v. Keisler, 505 F.3d 680, 684 (7th Cir. 2007).
Additionally, both parties are critical of our holding in Ali
v. Gonzales, 502 F.3d 659 (7th Cir. 2007), and urge us to recon-
sider that holding. This argument is outside the scope of the
grant of rehearing by this panel. Furthermore, this court
recently has reaffirmed the holding in Ali. See Kucana v. Mukasey,
533 F.3d 534, 537 (7th Cir. 2008).
No. 06-2441 9
tion to be processed. However, the Government states,
Mr. Potdar’s adjustment application now has been pro-
cessed and rejected, and this court may take judicial notice
of that fact. Consequently, regardless whether the BIA’s
decision initially may have frustrated Mr. Potdar’s statu-
tory right, he nevertheless had the opportunity to apply
for adjustment of status. Consequently, there is no basis
on which to remand the matter to the BIA.
The basis of Mr. Potdar’s continuation request before
the BIA was to allow time for adjudication of his legaliza-
tion and other applications then pending with the Depart-
ment of Homeland Security. See A.R. at 20. If, therefore,
Mr. Potdar’s applications all have been considered and
rejected, it would appear that our involvement in the case
is at an end. However, the Government neither has pro-
vided us with the documentation substantiating its asser-
tion, nor has it provided us with authority supporting
an appellate court’s use of judicial notice in a similar
situation. Consequently, we believe the best course is to
remand the matter to the BIA. The BIA is in a better
position to evaluate the subsequent administrative
actions, to determine whether Mr. Potdar’s applications
for substantive relief have been considered and denied
and, in the first instance, to determine the appropriate
disposition of this administrative proceeding if those
applications have been denied.
Conclusion
For the foregoing reasons, we reverse our prior decision
dismissing Mr. Potdar’s petition for review for want of
10 No. 06-2441
jurisdiction, and we remand the case to the BIA for
further proceedings consistent with this opinion. The
parties will bear their own costs in this court.
R EVERSED and R EMANDED
12-16-08