Jimmy Johnson v. Atty Gen USA

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

4-16-2002

Jimmy Johnson v. Atty Gen USA

Precedential or Non-Precedential:

Docket No. 01-1331

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PRECEDENTIAL

Filed April 16, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 01-1331

JIMMY JOHNSON,

Petitioner

v.

JOHN ASHCROFT, Attorney General

of the United States

On Petition for Review of an Order

of the Board of Immigration Appeals

(No. A73 149 183)

Argued November 7, 2001

Before: BECKER, Chief Judge, and McKEE

and RENDELL, Circuit Judges

(Filed April 16, 2002)

Visuvanthan Rudrakumaran

[ARGUED]

Suite 2309

875 Avenue of the Americas

New York, NY 10001

Counsel for Petitioner

Jimmy Johnson

William C. Minick [ARGUED]

Michael P. Lindemann

Christopher C. Fuller

Alison M. Igoe

Office of Immigration Litigation

Civil Division, Department of Justice

P. O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

RENDELL, Circuit Judge.

Jimmy Johnson petitions for review of a Board of

Immigration Appeals ("BIA" or "Board") order reversing a

grant of asylum and withholding of deportation based on

changed country conditions.

The BIA held that the Immigration Judge did not have

jurisdiction over these claims at the time he considered

Johnson’s application for relief under the Convention

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment ("CAT")1 because the case had

been reopened and remanded for the "sole purpose" of

considering the CAT claim. The question before us is

whether on remand the Immigration Judge’s jurisdiction

was limited to the CAT issue. For the reasons below, we

conclude that, in deciding that it was limited, the Board

departed without reasonable explanation from its own

policy that it established in Matter of Patel , 16 I. & N. Dec.

600 (BIA 1978). Accordingly, the Petition for Review will be

granted and we will vacate the Board’s order and remand

for further proceedings consistent with this opinion.

_________________________________________________________________

1. G.A. Res. 39/46 (annex), U.N. GAOR, 39th Sess., Supp. No. 51, at

197, U.N. Doc. A/39/51 (1984).

2

I.

When Johnson entered the United States from Liberia in

1994 without a valid visa or travel documents, he was

placed in exclusion proceedings and taken into custody by

the Immigration and Naturalization Service ("INS"). His

initial application for asylum under Immigration and

Naturalization Act ("INA") S 208, 8 U.S.C. S 1158, and

withholding of deportation under former INA S 243(h), 8

U.S.C. S 1253(h) (1995), was denied and he was ordered

excluded. The Board affirmed on appeal.

Johnson then filed a motion with the Board to reopen

and/or reconsider asylum and withholding of deportation in

1996. In a published opinion, the Board denied the motion

as untimely, holding that the motion to reconsider was

more than 60 days late, that the motion to reopen was 2

days late, and that a motion is "filed" when it is received

rather than when an applicant in custody sends it. See In

re J-J-, 21 I. & N. Dec. 976 (BIA 1997). The Board

considered the exception to the timeliness requirements for

motions to apply for asylum based on changed

circumstances in the applicant’s country of nationality, see

8 C.F.R. S 3.2(c)(3)(ii), but concluded that the exception did

not apply because Johnson failed to provide material

evidence of changed conditions that was unavailable at

prior hearings. See In re J-J-, 21 I. & N. Dec. at 981-82.

In 1999, Johnson filed a motion with the Board to reopen

for consideration of relief under CAT, which the Board

granted. The Board’s order provided that

[W]e . . . remand this matter to the Immigration Court

for consideration of the respondent’s claim pursuant to

[CAT] regulations.

. . .

FURTHER ORDER: The record is remanded to the

Immigration Judge for further proceedings consistent

with the foregoing opinion and for the entry of a new

decision.

The effect of this remand order is at issue here.

While the case was on remand, Johnson made a written

motion before the Immigration Judge urging the court"to

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consider the respondent’s eligibility for asylum in the

proceedings based on changed country conditions." The

Immigration Judge considered this motion as well as the

motion to withhold deportation under CAT, ultimately

granting both.

In his decision, the Immigration Judge addressed

whether his jurisdiction was limited to the CAT claim. While

acknowledging that the Board and the Supreme Court have

set a high standard for reopening immigration proceedings

because of the interest in finality, see, e.g. , INS v. Abudu,

485 U.S. 94, 107 (1988); In re A-G-, 19 I. & N. Dec. 502,

503-04 (BIA 1987), he reasoned that the decision was no

longer final once the case had been reopened, so that this

interest was not implicated. Moreover, he made the point --

uncontested by the INS -- that if Johnson had become

eligible for adjustment of status in the meantime, that

matter could have been entertained by him on remand.

This, he stated, supported his view that "issues besides

that for which the Board specifically reopened the case"

could be heard on remand. He found that application of

this principle was particularly appropriate in these

circumstances, where so much of the evidence of the CAT

claim was relevant to the asylum claim as well.

The INS appealed the Immigration Judge’s decision to the

Board, which affirmed the grant of withholding relief under

CAT, but vacated the grant of asylum and withholding of

deportation. The Board did not address the merits of the

asylum claim, but rather vacated on the ground that the

Immigration Judge had lacked jurisdiction to consider the

motion because the Board’s remand referred jurisdiction

back to the Immigration Judge only as to the CAT motion.

In its opinion, the Board began by citing the general rule

that "a remand, unless the Board qualifies or limits it for a

specific purpose, is effective for the stated purpose and for

consideration of any and all matters which the Immigration

Judge deems appropriate in the exercise of his

administrative discretion or which are brought to his

attention in compliance with the appropriate regulations."

Citing Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978))

(Board’s emphasis). It then pointed out that the standards

4

to reopen for relief under CAT are more easily satisfied than

those to reopen for other purposes.

Finally, the Board looked to the background regulations

and the relief sought in Johnson’s motion to reopen for

consideration under CAT, reasoning that both indicated

that "the applicant’s motion was filed to pursue this limited

form of relief and, thus, was granted and remanded to the

Immigration Judge for the limited purpose of entertaining

his application for relief pursuant to [CAT]." Specifically, the

Board pointed to the regulation providing that an alien

under final order of exclusion "may move to reopen

proceedings for the sole purpose of seeking" withholding of

removal under CAT. 8 C.F.R. S 208.18(b)(2). 2 For all of these

reasons, it concluded that the Immigration Judge’s

jurisdiction on remand was limited to the CAT claim.

Johnson filed a timely appeal of the portion of the

Board’s order vacating the Immigration Judge’s grant of

asylum and withholding of deportation.

II.

We have jurisdiction under INA S 106, 8 U.S.C.

S 1105a(a), as modified by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 ("IIRIRA").3 While

we will often defer to agency interpretations in the

immigration context, see Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, 467 U.S. 837 (1984); Abdille v. Ashcroft,

242 F.3d 477, 484-85 (3d Cir. 2001) (citing INS v. Aguirre-

Aguirre, 526 U.S. 415, 424-25 (1999)), this case concerns

the scope of jurisdiction of the Immigration Judge and the

BIA as it has been interpreted in the BIA’s own precedent.

The parties and the Board agree that it rests essentially on

one decision -- Matter of Patel, 16 I. & N. Dec. 600 (BIA

_________________________________________________________________

2. This provision applies only to aliens like Johnson who were "ordered

removed, or whose removal orders became final, before March 22, 1999."

8 C.F.R. S 208.18(b)(2).

3. We note that we do not need to decide which rules apply because this

matter was reviewable under the old rules, see INA S 106, and is not in

any of the categories affected by the IIRIRA’s transitional or permanent

rules, see IIRIRA S 309(c)(4); INAS 242, 8 U.S.C. S 1252.

5

1978). Immigration regulations provide that Patel, because

it is a published opinion, "shall serve as precedent[ ] in all

proceedings involving the same issue or issues." 8 C.F.R.

S 3.1(g). The issue before us, therefore, is whether the

Board departed from its own precedent.

Although an agency can change or adapt its policies, it

acts arbitrarily if it departs from its established precedents

without "announcing a principled reason" for the departure.

Fertilizer Inst. v. Browner, 163 F.3d 774, 778 (3d Cir. 1998)

(noting the well-established rule that an agency can depart

from precedent only with explanation); see also Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 41-43 (1983); Chisholm v. Defense Logistics

Agency, 656 F.2d 42, 47 (3d Cir. 1981) (agencies must

follow, distinguish, or overrule their own precedent).

Numerous courts have applied this principle in the

immigration context,4 as we do here. Further, if it departs

from an announced rule without explanation or an"avowed

alteration," such action could be viewed as "arbitrary,

capricious, [or] an abuse of discretion." INS v. Yang, 519

U.S. 26, 32 (1996). Here, the Board has not announced an

alteration of the policy set forth in Patel. Thus, if the Board

did in fact depart from Patel, it acted arbitrarily and we

should overturn its ruling.

III.

We begin our analysis with a discussion of the Board’s

opinion in Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978),

in which the Board established the standard for the scope

_________________________________________________________________

4. See Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) ("An agency

may not abandon an interpretation without an explanation . . . .

Agencies do not have the same freedom as courts to change direction

without acknowledging and justifying the change."); Davila-Bardales v.

INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring the BIA to "confront the issue

squarely and explain why the departure is reasonable" when it departs

from its own precedents); Israel v. INS, 785 F.2d 738, 740 (9th Cir. 1986)

(the BIA acts arbitrarily when it disregards its own precedents and

policies without "reasonable explanation"); Moret v. Karn, 746 F.2d 989,

992 (3d Cir. 1984) (the INS abused its discretion where it failed to follow

its own internal procedures).

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of remand orders in immigration proceedings. While few

cases or Board decisions elaborate on Patel’s standard, and

its language is often quoted without elaboration, 5 it is

widely acknowledged to govern this situation. This is not

disputed here: the parties and the Board simply offer

competing interpretations of the standard the case sets

forth.

Before the Board in Patel was a motion to reopen

proceedings so that the respondent could apply for relief

under S 244(a)(1) of the INA, 8 U.S.C. S 1254(a)(1). In a two-

page decision, the Board found that it lacked jurisdiction to

decide this motion because it had previously reopened the

case for consideration of respondent’s rights under asylum

provisions and had remanded the case. Accordingly, the

Immigration Judge, and not the Board, had jurisdiction.6

Patel set forth the relevant test as follows:

[W]hen the Board remands a case to an immigration

judge for further proceedings, it divests itself of

jurisdiction of that case unless jurisdiction is expressly

retained. Further, when this is done, unless the Board

qualifies or limits the remand for a specific purpose,

the remand is effective for the stated purpose and for

consideration of any and all matters which the Service

officer deems appropriate in the exercise of his

administrative discretion or which are brought to his

attention in compliance with the appropriate

regulations.

Id. at 601.

Under this formulation, the Board will have no

continuing jurisdiction if remand is ordered, unless the

_________________________________________________________________

5. E.g., In re L-V-K-, Int. Dec. 3409, 1999 WL 607159 (BIA Aug. 10, 1999)

(dissent) (citing Patel for the proposition that "[o]nce a case is remanded,

such a remand, unless specifically limited, is for any appropriate

purpose"); CHARLES GORDON ET AL., 1 IMMIGRATION LAW AND PROCEDURE

S 3.05[5][b], at 3-55 (Dec. 2000) (citing Patel).

6. In the same decision, the Board denied another respondent’s motion

to reopen for relief under S 244 because he failed to make out a prima

facie case of eligibility, but this portion of the decision is not relevant

here.

7

Board has "expressly retained" jurisdiction. And, even if it

has expressly retained jurisdiction,7 the Immigration Judge

on remand can consider the stated purpose and other

appropriate matters unless the remand is qualified or

limited to a specific purpose. That is, for the Board to retain

jurisdiction over all but a narrow issue, generally it must do

two things in the text of its remand order: expressly retain

jurisdiction, and limit the remand to a specific purpose.

The Board did not do either here.

1. Express retention of jurisdiction

The government argues that the Board limited the

Immigration Judge’s jurisdiction by stating that"we . . .

remand this matter to the Immigration Court for

consideration of the respondent’s claim pursuant to[CAT]

regulations" and citing the relevant regulations. It proposes

that this same language both expressly retained Board

jurisdiction over everything but Johnson’s CAT claims, and

qualified and limited the remand to this specific purpose.

By reaching this conclusion without considering separately

the "express retention" and "qualifying or limiting"

requirements, it ignores the fact that Patel implies that

there are at least some circumstances in which language

could expressly retain jurisdiction without qualifying or

limiting the remand. Otherwise, Patel’s second sentence --

"Further, when this is done . . ." -- would be superfluous.

Accordingly, we examine each of Patel’s requirements in

turn, beginning with its statement that the Board generally

no longer has jurisdiction when it has remanded a case,

except when it "expressly retains" jurisdiction over it.

Patel itself does not elaborate on the concept of "express

retention" of jurisdiction. After setting forth the test, it

simply states that the remand order at issue was"not

limited or qualified," bypassing analysis of"express

retention." And, there is no caselaw discussing how we

should interpret this language in this context. We thus turn

_________________________________________________________________

7. Linguistically Patel’s phrase "when this is done" could refer either to

"when the case is remanded" or to "when jurisdiction is expressly

retained," but logically it refers to the latter. If the Board simply remands

without retaining any jurisdiction, it makes no sense to define the scope

of its un-retained jurisdiction.

8

for guidance to the common definition of "express" as

"explicit," in contrast to implicit or inferred. Black’s Law

Dictionary, for instance, defines "express" as "[c]lear;

definite; explicit; plain . . . . Made known distinctly and

explicitly, and not left to inference." BLACK’S LAW DICTIONARY

580 (6th ed. 1990). Other dictionaries give substantially

similar definitions. See, e.g., WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 803 (1993) (defining "express" as

"directly and distinctly stated or expressed rather than

implied or left to inference . . . definite, clear, explicit,

unmistakable").

The most obvious way for a tribunal to "expressly retain

jurisdiction" is by stating that it is doing precisely that. In

In re Prudential Ins. Co. of Am. Sales Practice Litig., 261

F.3d 355, 367 (3d Cir. 2001), we characterized the district

court as having "expressly retained exclusive jurisdiction"

over certain settlement proceedings where its order simply

stated that it "retain[ed] exclusive jurisdiction as to all

matters relating to [settlement] administration." In re

Prudential Ins. Co. of Am. Sales Practice Litig., 962 F. Supp.

450, 566 P 10 (D.N.J. 1997). And in other situations where

the adjective "express" is used, we have viewed it as

requiring an actual, stated reference or mention. In

Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 141 (3d

Cir. 2001), for instance, we found no "express

determination" that there was no just reason for delay

where the district court’s order did not use the phrase ‘no

just cause for delay’ or any similar statement.

Here, the remand order did not state that the Board

retained jurisdiction, nor did it make any reference at all to

the Board’s jurisdiction. In this context, we see no reason

to interpret "express" in a way other than as it is commonly

understood. Given Patel, we cannot conclude that the order

on its face expressly retained jurisdiction.

2. Qualification or limitation to a specific purpose

Even had the Board expressly retained jurisdiction, our

inquiry would not end there. Patel then tells us: "[f]urther,

when this is done, unless the Board qualifies or limits the

remand for a specific purpose, the remand is effective for

the stated purpose and for consideration of any and all

9

matters . . . ." It, thus, provides for two possible scenarios.

If the Board "qualifie[d] or limit[ed] the remand for a specific

purpose," then the Immigration Judge would be limited to

that purpose. But if the Board did not include such

qualifications or limitations, then the Immigration Judge

could appropriately consider the stated purpose and "any

and all matters" deemed appropriate or brought under

relevant regulations.

Clearly, here, the Board did state a purpose --

consideration of Johnson’s CAT claims. But the language of

Patel just quoted contemplates that an order can articulate

a purpose without being qualified or limited. The general

rule that a remand encompasses the stated purpose and

other matters clearly assumes and anticipates the normal

practice of the Board, namely a remand for a stated

purpose. Under Patel, the Immigration Judge’s jurisdiction

is narrowed only when the remand order is qualified or

limited, which, given the structure of Patel’s sentence, must

be more than a statement of purpose alone.

Although the Board stated a purpose, it did not limit or

qualify the remand, so the Immigration Judge could then

hear a wide range of matters. The government urges us to

find that "[b]y explicitly stating that it was remanding the

petitioner’s case for consideration pursuant to regulations

that govern claims under the Convention Against Torture

only, the Board specifically limited and qualified the basis

of its remand." The difficulty with this argument is that

Patel assumes a purpose will be "stated," as it was, but

none of the limiting language that the government points to

in its papers -- "only" and "sole and express purpose" -- or

that the Board points to in its decision -- "sole purpose" --

appears in the order. Without such limiting language, the

order contains nothing more than a stated purpose.

We note, further, that the remand at issue here is similar

to the one in Patel, which the Board found was not

qualified or limited, in that it refers to a specific regulatory

provision. In Patel, the Board had previously ordered

reopening in view of respondent’s rights under a particular

asylum provision, Patel, 16 I. & N. Dec. at 601, whereas

here the order referred to the CAT regulations. This

10

statement of a purpose was not a limitation in Patel, so it

similarly should not be in this situation.

3. The scope of the Immigration Judge’s jurisdiction

Because the Board’s order stated a purpose but did not

limit remand to that purpose, Patel instructs that the

Immigration Judge could consider Johnson’s CAT claims

and "any and all matters which [the Immigration Judge]

deem[ed] appropriate in the exercise of his administrative

discretion or which [were] brought to his attention in

compliance with the appropriate regulations." Patel, 16 I. &

N. at 601 (emphasis added). For the reasons below, we

believe that the asylum claim was the type of matter that

Patel contemplated an Immigration Judge would hear in

these circumstances.

In its opinion, the Board focused on the second part of

Patel’s sentence, which refers to the "appropriate

regulations." Not only did the Board emphasize the phrase

when quoting Patel’s key passage, but it also characterized

Patel as "requiring purposes for remand to be in compliance

with the appropriate regulation." But this is not what Patel

says. Instead, the phrase refers to the manner of bringing

matters to the Immigration Judge’s attention, and--

particularly with its use of "any and all"-- seems to be an

expansive, not a narrowing, phrase.

The Board’s ruling here might also be viewed as opining

that the motion was not brought in compliance with

8 C.F.R. S 208.18(b)(2), the regulation that allows motions

"to reopen proceedings for the sole purpose of seeking"

withholding of removal under CAT. But if we were to

concede that use of the word "sole" in this regulation was

sufficient to restrict the Immigration Judge’s jurisdiction on

remand, that would be entirely inconsistent with Patel. The

Board did not address this issue, but seems to have either

misread Patel or decided that somehow the regulation is a

jurisdictional limitation that trumps Patel. The latter seems

unlikely because the Board does rely on Patel as well.

The Board also pointed out in its opinion that Johnson’s

motion for asylum relief would have been time barred and

would have exceeded the permissible number of motions if

it had been deemed a motion to reconsider the Board’s prior

11

decision. 8 C.F.R. S 3.2(b)(2) (establishing a filing deadline

for motions to reconsider and limiting them to one per

decision). This argument was not pursued on appeal, but

even if it had been, it is not relevant at this stage of the

proceedings. These time and numerical limitations do not

apply to motions to reopen based on changed country

circumstances where the movant shows evidence of

changed conditions that "is material and was not available

and could not have been discovered or presented at the

former hearing." 8 C.F.R. SS 3.23(b)(3), 3.2(c)(3)(ii).8 The

Board did not reach the issue of whether this standard was

appropriately met or applied because it based its

conclusion on the scope of the Immigration Judge’s

jurisdiction, as defined by the remand order.

The government similarly pointed out that this was

Johnson’s second motion to reopen for consideration of

asylum based on changed country conditions, and that the

Board had denied the previous one. See In re J-J-, 21 I. &

N. Dec. 976 (BIA 1997). But its argument that Johnson was

impermissibly readjudicating his asylum claim is not

addressed to the Immigration Judge’s jurisdiction on

remand, and, even if it were, the regulations specifically

permit "readjudication" when the requirements for showing

changed country conditions are met. See 8 C.F.R.

SS 3.23(b)(3), 3.2(c)(3)(ii). None of this amounts to a

regulatory prohibition against the consideration of asylum

based on changed country conditions.

Patel states that the Immigration Judge may hear such

matters "or" those deemed appropriate in the exercise of the

judge’s discretion. Presumably this discretion has limits.

The Board’s decision in In re J-J-, 21 I. & N. Dec. 976 (BIA

1997), for instance, noted that the Board’s power to reopen

cases on its own motion was "not meant to be used as a

general cure for filing defects or to otherwise circumvent

the regulations." Id. at 984. Assuming that a similar

standard would apply where the Immigration Judge’s

_________________________________________________________________

8. Motions to reopen based on changed country conditions are an

exception to the rule that motions to reopen are normally limited to one

per alien and must be filed no later than 90 days after the final

administrative decision. See 8 C.F.R. S 3.2(c)(2).

12

discretion, rather than the Board’s discretion, is at issue,

we do not view the Immigration Judge’s consideration of

Johnson’s motion to run afoul of the regulations. Nor do we

view his addressing this issue to be an inappropriate

exercise of his discretion, especially given the factual

overlap among Johnson’s claim for asylum, statutory

withholding of deportation, and withholding of deportation

under CAT.9

IV.

The Board’s ruling that the Immigration Judge did not

have jurisdiction runs counter to its own dictates in Patel,

which contemplates that, in most cases, the Immigration

Judge will have broad jurisdiction over the case on remand.

This reading of Patel finds additional support from the

policy expressed by the Executive Office for Immigration

Review in the Board of Immigration Appeals Practice

Manual, which states: "Once a case has been remanded to

the Immigration Judge, the only motion that can be

entertained by the Board is a motion to reconsider the

decision to remand. All other motions must be filed with

the Immigration Judge." DEPARTMENT OF JUSTICE, EXECUTIVE

OFFICE FOR IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS

PRACTICE MANUAL S 5.2(a)(iii)(B) (Nov. 1, 1999). While the

manual does not have the weight of a law or regulation and

does not affect the Board’s jurisdiction, see id. S 1.1(c), or

our ruling, we note that the policy it expresses is consistent

_________________________________________________________________

9. The first two claims require a showing that Johnson’s life or freedom

would be threatened "on account of race, religion, nationality,

membership in a particular social group, or political opinion," while CAT

requires a showing that it is more likely than not that the alien would

be tortured upon return to his or her country. Compare INA S 208, 8

U.S.C. S 1158, and former INA S 243(h), 8 U.S.C. S 1253(h) (1995)

(current version at INA S 241(b)(3), 8 U.S.C.S 1231(B)(3)), with 8 C.F.R.

S 208.16(c)(2). The INS itself has recognized the similarity of these types

of claims in general: in the interim rule establishing procedures for CAT

claims, it noted that the same application form is used for asylum,

withholding of removal, and relief under CAT because in many cases "the

underlying facts supporting these claims will be the same." Regulations

Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485

(Feb. 19, 1999).

13

with the jurisdictional view expressed by the BIA in Patel,

and with the result we reach.

If the Board departs from Patel, it should provide a

reasonable explanation for its departure. It is possible that

it viewed the regulatory language (i.e.,"sole purpose") as

effecting a limitation on jurisdiction, but that appears to

run counter to the jurisdictional scheme reflected in Patel.

The Board did not explain its departure and, therefore, its

disregard of its own precedents was arbitrary. Because we

view its ruling as a departure and because an agency

should explain a departure, we will GRANT the petition for

review, VACATE the Board’s order, and REMAND for

further consideration in light of this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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