Balmore Hernandez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
SEP 02 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALMORE A. HERNANDEZ, AKA Jose No. 12-71986
Hernandez-Rodriguez, AKA Cirilo
Rodriguez-Herandez, Agency No. A094-395-669
Petitioner,
MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 12, 2015
San Francisco, California
Before: REINHARDT, NOONAN, and CALLAHAN, Circuit Judges.
Balmore Alcides Hernandez challenges the Board of Immigration Appeals’
(BIA) dismissal of his request for administrative closure of his removal
proceedings pursuant to paragraph 19 of the settlement agreement entered in
American Baptist Churches v. Thornburgh, 760 F. Supp. 796, 805–06 (N.D. Cal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1991) (the ABC agreement). Because the plain language of the ABC agreement
entitles an ABC class member to “ask . . . the BIA to administratively close his or
her case,” id. at 805, we grant the petition for review and remand for the BIA to
adjudicate Hernandez’s request for administrative closure on its merits.
1. The ABC litigation involved a class-action lawsuit filed by “churches,
organizations, and individuals on behalf of more than 300,000 asylum applicants
from El Salvador and Guatemala.” Chaly-Garcia v. United States, 508 F.3d 1201,
1202–03 (9th Cir. 2007) (describing the ABC agreement and its background); In re
Morales, 21 I. & N. Dec. 130, 132 (BIA 1995) (same). The complaint alleged that
the government had systematically violated the Refugee Act of 1980, Pub. L. No.
96–212, 94 Stat. 102, in the processing of Salvadoran and Guatemalan asylum
applications. See Chaly-Garcia, 508 F.3d at 1202. On January 31, 1991, the
district court approved a settlement agreement, which it published as part of its
order. ABC, 760 F. Supp. 796. The agreement provides that “all Salvadorans in
the United States as of September 19, 1990,” who have not been convicted of an
aggravated felony and who have perfected their rights by taking steps specified in
the agreement, are eligible for “a de novo, unappealable asylum adjudication
before an Asylum Officer, including a new interview, under the regulations in
effect on October 1, 1990.” Id. at 799–800.
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At issue in this case is a class member’s right under paragraph 19 of the ABC
agreement to request administrative closure of adversarial removal “proceedings
before an Immigration Judge or [the BIA] pending a new asylum adjudication”
before the U.S. Citizenship and Immigration Service (USCIS). Morales, 21 I. &
N. Dec. at 133. Paragraph 19 states, in relevant part, that “any class member . . .
whose [removal] proceeding was commenced after November 30, 1990, . . . may
ask the Immigration Court or the BIA to administratively close his or her case and
the case will be administratively closed unless the class member has been
convicted of an aggravated felony or is subject to detention under paragraph 17.”
ABC, 760 F. Supp. at 805. Paragraph 17, in turn, states that qualifying class
members may be detained in immigration custody only if they “(1) have been
convicted of a crime involving moral turpitude for which the sentence actually
imposed exceeded a term of imprisonment in excess of six months; or (2) pose a
national security risk; or (3) pose a threat to public safety.” Id. at 804.
2. The government does not dispute that Hernandez is an ABC class
member who is entitled to request administrative closure of his removal
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proceedings.1 Rather, the government argues that Hernandez waived his request
for administrative closure by not exhausting administrative remedies before the
BIA. This argument is without merit. Hernandez clearly invoked paragraph 19 of
the ABC agreement in seeking administrative closure from the BIA.
The government also contends that paragraph 19 “contemplates that either
the [BIA] or the immigration courts will adjudicate” a request for administrative
closure. Therefore, according to the government, the BIA’s decision that
Hernandez “needed to pursue his Election before the immigration judge, in no way
violated the plain language of paragraph 19.” This argument fails under paragraph
19’s plain language, which provides that ABC class members “may ask the
Immigration Court or the BIA to administratively close his or her case.” ABC, 760
F. Supp. at 805 (emphasis added). The government’s interpretation of paragraph
19 reads “or the BIA” out of the agreement and thus is rejected. Chaly-Garcia,
1
At oral argument the government argued for the first time that, under
paragraph 21 of the ABC agreement, Hernandez is not entitled to request
administrative closure because he failed to make the request before the
immigration court had entered a final removal order. Even assuming that
paragraph 21 applies to removal proceedings commenced after November 30,
1990, we question the paragraph’s application to this case. Hernandez sought
administrative closure while removal proceedings remained pending before the
BIA, after the government sought and was granted a remand. We do not reach the
government’s argument, however, because it was not raised in its briefs.
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in a party’s opening brief.”).
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508 F.3d at 1202–03 (refusing to adopt an interpretation of the ABC agreement that
would read a clause out of the agreement).
Neither the 30-day time limit for filing a notice of appeal with the BIA under
8 C.F.R. § 1003.38(b) nor the BIA’s place-of-filing rule under 8 C.F.R. § 1003.2(a)
strip the BIA of jurisdiction to decide an ABC class member’s request for
administrative closure. See Hernandez v. Holder, 738 F.3d 1099, 1102 (9th Cir.
2013); Irigoyen–Briones v. Holder, 644 F.3d 943, 949 (9th Cir. 2011). Moreover,
under the ABC agreement, a class member’s right to seek administrative closure is
not qualified by any procedural requirements other than “ask[ing] the BIA.” ABC,
760 F. Supp. at 805. Upon such request to “the BIA . . . the case will be
administratively closed unless the class member has been convicted of an
aggravated felony or is subject to detention under paragraph 17.” Id.
3. The government appears to concede that Hernandez is neither an
aggravated felon nor subject to detention under paragraph 17. We remand for the
BIA to determine Hernandez’s entitlement to administrative closure in the first
instance, consistent with our decision. See INS v. Ventura, 537 U.S. 12, 18 (2002).
As Hernandez is awaiting an asylum interview with the USCIS and hopes to apply
for relief under Section 203 of the Nicaraguan Adjustment and Central American
5
Relief Act before the interview occurs, we trust that the BIA’s decision will be
expeditious.
Petition GRANTED and REMANDED.
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