discussing the "fallacy of . . . the belief that what is -13- 13 final for certain administrative purposes is final for all purposes"
How later courts described this case
- discussing the "fallacy of . . . the belief that what is -13- 13 final for certain administrative purposes is final for all purposes"
- noting that alien’s status as a lawful permanent resident would be reinstated as of date of issuance of a BIA order reversed by court of appeals
- discussing the “fallacy of ... the belief that what is final for certain administrative purposes is final for all purposes”
- noting that alien could manipulate the system so as to delay finality of deportation order indefinitely
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
with whom BEEZER and HALL, Circuit Judges, join, concurring:
I concur in the majority opinion and write separately to explicate my reasons for doing so.
As I understand it, the majority holds that “finality” in some cosmic sense is not really the issue here. Nor must we truly decide what lawful permanent residence means as that phrase is used in 8 U.S.C. § 1182 (c) and defined in 8 U.S.C. § 1101 (a)(20). Rather, the issue is a simple procedural one; it is a question of whether a determination of the BIA can be reopened and reconsidered at any time, regardless of the type of issue involved. As I see it the majority says, “yes.” I do not see that as a radical or shocking answer, so I agree.
We all know that finality is a somewhat fluid concept in law, as it is in nature — at least until the entropy of the universe. For example, in a civil case a decision of a district court on any issue can be reconsidered and upset long after it has become final. Fed.R.Civ.P. 60(b). Moreover, even criminal decisions, long since final, can be overturned in habeas corpus proceedings. Similarly, the INS in its wisdom has adopted a regulation whose plain words state that any decision is subject to reopening at any time, with the single exception noted in the majority opinion. See 8 C.F.R. § 3.2 . Thus, the BIA’s final decision that a person is not entitled to section 212 relief can be reopened just as any other decision can be. Of course, that is not to say that a particular person will make a convincing argument for reopening; it is just to say that the person is not precluded at the outset.
All of this being so, we need not consider arguments regarding Chu v. INS, 875 F.2d 777, 780-81 (9th Cir.1989), a case which involved a species of finality — that is, finality for the purpose of appealing to this court. Nor need we consider our cases regarding the accrual of seven years of residence while the appeal process is going forward. See, e.g., Avila-Murrieta v. INS, 762 F.2d 733, 735 (9th Cir.1985). Those cases deal with precisely the same words in the statutory provision that we deal with here. Although it might be exceedingly difficult to say that those words could have different meanings for our purpose than they had in Avila-Murrieta , we need not discuss the issue. All we need to do is hold the BIA to the regulations the INS has adopted. If the INS now wishes to adopt different regulations, that route is available to it.
In short, does not the BIA have to follow the regulations until they are changed? I think the answer is yes. Thus, I concur.