Opposition Brief — Yanez-Penaloza v. Immigration & Naturalization Service

. ] Supreme Court, U.S.

FILED

MAY 17 1996

No. 95-1483

ee CE RR ANE. RRR AE DAI mc EHR

Jn the Supreme Court of the Bike leis

OCTOBER TERM, 1995

ARTURO YANEZ-PENALOZA

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREW S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

CHRISTOPHER C. FULLER

MADELINE HENLEY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether an individual who has been found deport-

able by a final order of the Board of Immigration Ap

peals remains eligible to file a motion to reopen depor

tation proceedings to seek relief from deportation un-

der 8 U.S.C. 1182(c), even though that relief is avail

able only to permanent resident aliens and an indi-

vidual found deportable by the Board no longer has the

status of a permanent resident alien.

TABLE OF CONTENTS

Page

I cunemsonens l

OI Ee SEES ae ee l

Ai l

TS ENEEDEG SEC ee EE ee RS VIRION TO 3

I 7

TABLE OF AUTHORITIES

Cases:

Acosta-Montero v. INS. 62 F.3d 1347 (11th Cir.

a aa a i 5 6.7

Butros v. INS, 990 F.2d 1142 (9th Cir. 1993) ......... 5. 6

Cerna, In re, 20 I. & N. Dec. 399 (BIA

1991), aff ’d, 979 F.2d 212 (11th Cir. 1992) ............... 3

Garcia-Hernandez v. INS, 821 F.2d 222 (5th Cir.

et sce a edeet ceoioanecnanes 3

Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992),

cert. denied, 507 U.S. 971 (1993) ....................0seecese- 3.5

Goncalves v. INS, 6 F.3d 830 (1st Cir. 1992) ........ 5. 6. 7

Henry v. INS, 8 F.3d 426 (7th Cir. 1993) ................ 5.6

ICC vy. Brotherhood of Locomotive Engineers, 482

I i imeoes 15

INS v. Abudu, 485 U.S. 94 (1988) ................... ee {

INS v. Doherty, 502 U.S. 314 (1992) .................. anid j

Katsis v. INS, 997 F.2d 1067 (3d Cir. 1993),

cert. denied, 114 S. Ct. 902 (1994) .....................00005. 5

Lok, In re, 18 1. & N. Dec. 101 (BIA 1981), aff’d

on other grounds, 681 F.2d 107 (2d Cir. 1982) ......... 1-5

Nwolise v. INS, 4 F.3d 306 (4th Cir. 1993), cert.

denied, 114 S. Ct. 888 (1994) ......................ccc000. wht 5

Prichard-Ciriza v. INS, 978 F.2d 219 (5th Cir.

I eth A leceadibctnianlaneebuiditaaciipiiadesdinctaskcessseeecneneave 3

Stone v. INS, 115 S. Ct. 1537 (1995) ..... SET See ae SOE 2.5

(III)

IV

Cases—Continued: Page

Vargas v. INS, 938 F.2d 358 (2d Cir. 1991) ............ 5

Statutes and regulations:

Immigration Act of 1990, Pub. L. No. 101-649,

As Be Ss I sonic sss cicsakdansahnbdénsencekeaaranes 5

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

SRF GINO dane vivaniaretndsapulidenduih taki ceedions 4

SSF cass RACED wcdeanisicassnissvecdieisavetiasnsinaemisis 2

FE ere, NIE oo ied oesdsbesidoistaaasa bande 2, 3, 4, 6, 6, 7

S Us TER, Fate Fe: shicie vessbnnctesncsstacchgusdaneapaneis 2

8 U.S.C. 1262(b) (Supp. TV 1992) ...............ccc0sc00 4

OS EF FasR spe Pickcei eaviundscduasnisobunasecuicietenias 2 |

BUG, Ie eshdek asst loca kodr ncaa 2 |

8 C.F.R.:

AARNE Snhinnddhtecincrdcisinbiiougiedmambubu acs ia ks 6

EINE BOO: cicdtaxisertsste eskspentaan diane 4 |

Miscellaneous: |

Attorney General Order No. 2020-96, 61 Fed. Reg.

ELL LONNIE: nsaipacsceuhiscssuiatouastaaduakanesbmmmidiainauetouse: 6

p. 18,904 (to be codified at 8 C.F.R. 1.1(p)) ......... 6

pp. 18,904-18,905 (to be codified at 8 C.F.R.

AMA) MINE COTS scassisiesecsiscvtenseciwenrltiedsadoasas 6

p. 18,905 (to be codified at 8 C.F.R. 3.2(c)(1)) ..... 6

In the Supreme Court of the Gnited States

OCTOBER TERM, 1995

No. 95-1483

ARTURO YANEZ-PENALOZA, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 10-11)

is unpublished, but the decision is noted at 77 F.3d 473

(Table). The orders of the Board of Immigration

Appeals (Pet. App. 12-16, 17-24) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 13, 1995. The petition for a writ of certio-

rari was filed on March 8, 1996. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner is a native and citizen of Mexico

whose status was adjusted to that of a lawful per-

(1)

manent resident alien on August 10, 1978. Pet. App.

18. On July 30, 1992, petitioner was arrested after

entering the United States without inspection in the

company of two undocumented aliens. Jbid. Peti-

tioner pleaded guilty in the United States District

Court for the Western District of Texas to illegal

entry in violation of 8 U.S.C. 1325. Pet. 2. The

Immigration and Naturalization Service (INS) com-

menced deportation proceedings against petitioner in

July 1992, contending that his conduct rendered him

deportable under 8 U.S.C. 1251(a)(1)(B). The immi-

gration judge found petitioner deportable. Pet. App.

18.

Petitioner also applied for suspension of deporta-

tion under 8 U.S.C. 1254(a)(1) but was found statutor-

ily ineligible for that relief. Pet. App. 18. In a de-

cision rendered on October 4, 1994, the Board of Immi-

gration Appeals affirmed the immigration judge’s

finding of deportability and the denial of suspension of

deportation. Jd. at 17-24. Petitioner did not seek

review of the deportation order in the court of appeals

within 90 days, as required by 8 U.S.C. 1105a(a)(1).

Pet. App. 11; see Stone v. INS, 115 8S. Ct. 1537, 1542

(1995).

2. On November 1, 1994, petitioner filed a motion

with the Board asking it to reconsider its depor-

tability determination and to reopen his deportation

proceedings to permit him to seek relief from depor-

tation under 8 U.S.C. 1182(c). Pet. App. 15. The

Board denied that motion on March 3, 1995. Jd. at 12-

16. The Board declined to reconsider its decision,

because it determined that it had considered all the

material facts and properly applied the law. Id. at 13-

14. It also refused to reopen, explaining that an alien

seeking reopening must show his prima facie elig-

ibility for the relief sought, and that relief under 8

U.S.C. 1182(c) is limited to lawful permanent resi-

dents. Pet. App. 15. Relying on its decision in Jn re

Cerna, 20 I. & N. Dec. 399 (BIA 1991), aff’d, 979 F.2d

212, 213 (11th Cir. 1992) (Table), the Board reasoned

that petitioner was not a permanent resident at the

time he filed the motion to reopen because the Board’s

earlier decision had resulted in an administratively

final order of deportation that deprived him of perman-

ent resident status. Pet. App. 15. The Board also

relied on Fifth Circuit precedent adopting Cerna’s

reasoning. /bid. (citing Prichard-Ciriza v. INS, 978

F.2d 219, 223 (5th Cir. 1992); Ghassan v. INS, 972 F.2d

631, 637-638 (5th Cir. 1992), cert. denied, 507 U.S. 971

(1993); Garcia-Hernandez v. INS, 821 F.2d 222, 224

(5th Cir. 1987)).

3. The court of appeals dismissed petitioner’s peti-

tion for review of the Board’s denial of his motion to

reopen. Pet. App. 10-11.

ARGUMENT

1. Petitioner argues (Pet. 3-8) that the Board

erred in denying his motion to reopen the deportation

proceedings or to reconsider its deportability deter-

mination.’ As this Court has explained, an alien

1 While petitioner now emphasizes that he requested recon-

sideration from the Board (Pet. 5), he raises no issue of law

concerning motions for reconsideration on which the courts of

appeals are divided. Unlike a motion to reopen, which seeks to

bring new factual developments before the tribunal, a motion to

reconsider is directed at convincing the tribunal that it erred in

resolving the matters placed before it when it originally ruled.

See Cerna, 20 I & N. Dec. at 402. To the extent that peti-

tioner’s November 1, 1994 motion sought reconsideration, as

distinct from reopening, the motion was based on petitioner’s

claim that the Board improperly relied on certain documentary

seeking to reopen deportation proceedings must make

a prima facie showing that he is eligible for the relief

he seeks. INS v. Abudu, 485 U.S. 94, 104 (1988); see

also INS v. Doherty, 502 U.S. 314, 323 (1992). To be

eligible for relief under 8 U.S.C. 1182(c), an alien

must, among other things, be a lawful permanent

resident alien. Under 8 U.S.C. 1101(a)(20), an alien is

“lawfully admitted for permanent residence” if he has

“the status of having been lawfully accorded the

privilege of residing permanently in the United

States * * *, such status not having changed.”

Hence, the principal question in this case is whether

petitioner’s status as a lawful permanent resi-

dent alien “changed,” for purposes of 8 U.S.C.

1101(a)(20), at the time the Board issued a final order

of deportation.

The Immigration and Nationality Act mandates

that deportation decisions “shall be final” upon com-

pletion of administrative proceedings. 8 U.S.C.

1252(b) (Supp. IV 1992); 8 C.F.R. 243.1 (“an order of

deportation * * * shall become final upon dismissal

of an appeal by the Board”). Because the Board’s

finding of deportability is the final administrative act

in the alien’s deportation proceeding, the Board

consistently has held that a lawful permanent

resident alien loses his lawful permanent resident

status when the Board issues its final order. Jn re

Lok, 181. & N. Dec. 101, 106 (BIA 1981), aff’d on other

evidence in finding him deportable. See Pet. App. 13-14.

Petitioner does not suggest that the Board committed any

error in rejecting that fact-bound claim. In any event, the

Board’s denial of petitioner’s motion (insofar as it sought

reconsideration) would not appear to be subject to judicial

review. See ICC v. Brotherhood of Locomotive Engineers, 482

U.S. 270, 280-284 (1987).

a a

5

grounds, 681 F.2d 107 (2d Cir. 1982). An alien is not

thereafter eligible to seek relief, such as relief from

deportation under 8 U.S.C. 1182(c), that is dependent

on permanent resident status.”

2. Petitioner correctly notes (Pet. 4) that the

courts of appeals have reached conflicting results on

the question of the eligibility of an alien to seek re-

opening for purposes of seeking relief under Section

1182(c) once the Board has found him deportable.

Compare Nwolise v. INS, 4 F.3d 306, 310-312 (4th Cir.

1993) (accepting Board’s analysis), cert. denied, 114 S.

Ct. 888 (1994); Katsis v. INS, 997 F.2d 1067, 1072-1075

(8d Cir. 1993), cert. denied, 114 S. Ct. 902 ( 1994)

(same); Ghassan, 972 F.2d at 637-638 (same), with

Acosta-Montero v. INS, 62 F.3d 1347, 1349-1351 (11th

Cir. 1995) (rejecting Board’s analysis); Henry v. INS,

8 F.3d 426, 434-439 (7th Cir. 1993) (same); Goncalves v.

INS, 6 F.3d 830, 832-835 (1st Cir. 1993) (same); Butros

v. INS, 990 F.2d 1142, 1144-1146 (9th Cir. 1993) (en

banc) (same); Vargas v. INS, 938 F.2d 358, 360-364 (2d

Cir. 1991) (same). Notwithstanding that conflict in

‘he appellate decisions, the question does not merit

review by the Court.

As we explained in our brief in opposition to cer-

tiorari in Ghassan v. INS, 507 U.S. 971 (1993) (No. 92-

872), Section 545(d) of the Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 5066, directed the Attor-

ney General to promulgate regulations that would

delineate more precisely the circumstances under

* There is no merit to petitioner’s suggestion (Pet. 4-5) that

ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270

(1987), requires the conclusion that an alien’s filing of a motion

to reopen renders the Board’s decision “non-final.” This Court

rejected that argument in Stone v. INS, 115 S. Ct. 1537, 1543-

1545 (1995).

which motions to reopen would be permissible. On

April 16, 1996, the Attorney General promulgated

those regulations.* See Attorney General Order No.

2020-96, 61 Fed. Reg. 18,900 (1996). The new regu-

lations require that a motion to reconsider be filed

within 30 days and a motion to reopen within 90 days

of the Board’s entry of a final order of deportation, see

61 Fed. Reg. 18,904-18,905 (1996) (to be codified at 8

C.F.R. 3.2(b)(2) and (c)(2)), whereas previously there

was no deadline. The new regulations also resolve the

question presented by the certiorari petition by

providing that lawful permanent residence status

terminates upon entry of a final order of exclusion or

deportation and that a motion to reopen for con-

sideration of an application for relief under 8 U.S.C.

1182(c) may be granted only if the alien was statu-

torily eligible for such relief prior to the entry of the

final order. See 61 Fed. Reg. 18,904, 18,905 (1996) (to

be codified at 8 C.F.R. 1.1(p) and 3.2(¢)(1)).

The courts of appeals that have rejected the Board’s

position have relied heavily on the notion that the

analysis of the Board in Cerna—that aliens seek-

ing relief under Section 1182(c) cannot file motions

to reopen—is inconsistent with the provisions of 8

C.F.R. 3.2 authorizing motions to reopen. See, e.g.,

Acosta-Montero, 62 F.3d at 1349-1351; Henry, 8 F.3d

at 438-439; Goncalves, 6 F.3d at 832-833; Butros, 990

F.2d at 1144. Indeed, speaking for the First Circuit

panel in Goncalves, then-Judge Breyer expressly

3 Because the statutorily mandated revision of the reopen-

ing regulations was believed to be imminent, we opposed re-

view in Ghassan, Katsis and Nwolise and declined to file peti-

tions seeking certiorari in Goncalves, Henry, Butros, and

Acosta-Montero.

~]

suggested that the problem be resolved by amending

the regulations, in lieu of seeking review in this

Court. Goncalves, 6 F.3d at 835-836; see also Acosta-

Montero, 62 F.3d at 1351 (“If the INS now wishes to

adopt different regulations, that route is available to

it”). The new regulations promulgated by the Attor-

ney General, by expressly addressing the subject of

motions to reopen that seek discretionary relief

under 8 U.S.C. 1182(c), have done precisely that, thus

eliminating the basis of the appellate rulings that

have rejected the Board’s position. Accordingly, the

circuit conflict on which petitioner relies lacks any

continuing importance and does not call for this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DreEw S. DAyYs, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

CHRISTOPHER C. FULLER

MADELINE HENLEY

Attorneys

MAY 1996