Selma Alizoti v. Alberto Gonzales, Attorney General of the United States

MERRITT, Circuit Judge,

dissenting.

The Court is correct to point out that this case “cries out for a common sense waiver of procedural defects” (Section III, last paragraph) in order to correct the BIA’s error “in presuming that Alizoti’s marriage was invalid and that she was guilty of an intentional misstatement.” But the Court then regards its authority as so narrow — indeed, almost nonexistent — that it cannot correct the injustice that the administrative process has itself brought about. The purpose of vesting jurisdiction in this Court to correct errors includes this kind of fundamental error on which a deportation order turns.

The administrative process has failed in three ways in this case. The first two errors were made by Homeland Security before the BIA got the case. The third error is the result of a mistake on the part of the BIA, a mistake it then refused to acknowledge and correct. First, Alizoti’s sworn statement that she had received approval of her 1-130 form (seeking approval of her marriage as valid) was entirely reasonable and based on the normal sequence of steps followed by Homeland Security, ie., that an adjustment of status interview based on an 1-485 form follows and does not precede the 1-130 approval. Second, Alizoti’s failure to demonstrate earlier in the BIA proceedings her valid marriage and adjustment of status was entirely the fault of Homeland Security and not in any way her fault. Third, the “reopening” and “reconsideration” statute ( 8 U.S.C. § 1229 (a)(6)(C)) clearly allows a motion to reconsider to “specify errors of law or fact in the previous order” as “supported by pertinent authority” or documentation. The motion to reconsider here showed an error of fact and law (the Board’s assumption that she did not have a valid marriage, a mistake based on the Board’s refusal to administratively notice an official decision to the contrary by an officer of the Department of Homeland Security).

As to the first point, the Department of Homeland Security did not follow its own procedures. On February 23, 2004, Alizo-ti’s husband filed the requisite Petition for Alien Relative Form (1-130) with the Department of Homeland Security along with their marriage certificate dated November 26, 2003 (App. p. 18). This 1-130 form is the one used to prove a valid marriage and provide the basis for permanent residency. With this filing Alizoti also filed an Application for Adjustment of Status Form (I-485) for permanent residency. Based on these filings, Alizoti and her husband were notified by the Department of Homeland Security a year and three months later on May 5, 2005, to appear for an interview regarding her Adjustment of Status Form. Alizoti clearly and satisfactorily explains that she based her assumption of approval of the 1-130 form on the interview conducted by the Department of Homeland Security. (Petitioner’s Brief at 17-18.) The interview was called based on her I- *455 485 Petition for Adjustment of Status. Normally, the Department of Homeland Security does not conduct an interview for the 1-485 Application to Adjust Status unless the 1-130 marriage petition has already been approved. This procedural sequence is logical since the valid marriage proven through the 1-130 form would be the basis even to consider an adjustment of status to permanent residency. In Ali-zoti’s case, however, the Department of Homeland Security did not follow its proper procedures and failed to act on her I-130 petition before it conducts its 1 — 485 interview for the adjustment of status. As a result, Alizoti unfortunately made the assumption that the Department of Homeland Security treated her case just as they would any other similar immigration case.

As to point two, she was late in filing with the BIA the approved 1-130 marriage petition only because Homeland Security delayed from February 2004 to October 2005, in approving this form. If Homeland Security had acted promptly, none of these problems would have occurred. There would have been no misstatement concerning the 1-130 marriage approval and no delay on her part in promptly filing this form with the BIA. The whole problem arose as a result of the delay on the part of Homeland Security.

As to the third point, the BIA on the motion to reconsider stubbornly and without individual consideration of the case or the above facts, ruled that it does not make any difference that Alizoti is in no way at fault and that she all along had a valid marriage and was eligible for adjustment of status. The statute 1 is designed to allow on motions to reconsider the correction of errors of fact like the one in the present case. Subsection (6) says such motions should “specify the errors of law or fact” to be corrected. The BIA in its earlier order, App. p. 23, presumes lack of a valid marriage and presumes that Alizoti is guilty of an intentional misstatement of fact. Both of these errors are the kind of “error of fact” that the motions to “reconsider” provision and the motion to “reopen” provision of the statute are designed to correct by the filing of supporting documentation. This is simply a case of inertia or inattention on the part of the BIA. It is the product of the refusal to give individual treatment to the individual case, the very process that the statutes and the motion to reconsider provision is designed to foster and the appellate review process is designed to catch and reverse.

Our Court thinks that these BIA “reopening” and “reconsideration” cases address themselves to the pure and complete discretion of the BIA, a discretion we do not have the authority to disturb. I do not agree. In this case, the Dept, of Homeland Security approved Alizoti’s 1-130 one *456-460 week before the BIA denied her motion to reconsider. The BIA should have, but refused to, administratively notice on the motion to “reconsider” this official decision by an immigration review officer of the Department of Homeland Security that Al-izoti has a valid marriage and is eligible for adjustment of status. The BIA clearly has a duty of administrative notice 2 to recognize this official decision as a “pertinent authority” under § 1229a(6). Its refusal to do so violates the statute, is clearly a matter of statutory construction, and should be given de novo review by our Court.

Although it is true that Alizoti can start the immigration process all over again with the State Department through the American Embassy in Tirana, Albania, this process will most likely take several years. Deporting Alizoti is particularly misguided because it is mainly the government’s fault that she did not originally make a prima facie case that she was eligible for permanent residency. The reason her 1-130 form had not been approved yet was because the Department of Homeland Security failed to issue any ruling for almost two years.

Because there is a strong public interest in bringing immigration cases to a close, we should settle this matter now instead of handing it over to the State Department for another round and several more years of work and effort via the U.S. Embassy in Albania. If our Court’s treatment of this poor woman’s case is representative of the type of non-review the Article III Courts are going to give to immigration cases, Congress may as well repeal judicial review as a waste of everyone’s time, money and effort.

. Subsections (6) and (7) of § 1229a state:

(6) Motions to reconsider

(A) In general

The alien may file one motion to reconsider a decision that the alien is removable from the United States.

(B) Deadline

The motion must be filed within 30 days of the date of entry of a final administrative order of removal.

(C) contents

The motion shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.

(7) Motions to reopen

(A) In general

An alien may file one motion to reopen proceedings under this section....

(B) Contents

The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.

(Emphasis added.)

. 8 C.F.R. 1003.1(d)(3)(iv) provides, “Except for taking administrative notice of commonly known facts such, as current events or the contents of official documents, the Board [of Immigration Appeals] will not engage in fact-finding in the course of deciding appeals.” (Emphasis added.) This regulation clearly recognizes that the Board has the power to take administrative notice of official documents, such as Alizoti's approved 1-130.