Opposition Brief — Katsis v. Immigration and Naturalization Service

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No. 93-423

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Gn the Supreme Court of the United States

OCTOBER TERM, 1993

STAVROS KATSIS, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

| TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREw S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

CHARLES E. PAZAR

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

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QUESTION PRESENTED

Whether an individual who has been found deportable

by a final order of the Board of Immigration Appeals re-

mains eligible to file a motion to reopen deportation pro-

ceedings to seek relief from deportation under 8 U.S.C.

1182(c), even though that relief is available only to per-

manent resident aliens and an individual found deportable

is no longer a permanent resident alien.

Z (1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Butros v. INS, 990 F.2d 1142 (9th Cir. 1998) ............. 6, 7

Cerna, In re, interim Dec. No. 3161 (BIA) (Oct. 7, 1991),

aff’d, Cerna v. INS, 979 F.2d 212 (11th Cir. 1992) ..... 3, 5

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 I ica . 3

Francis v. INS, 532 F.2d 268 (2d Cir. ee 2

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

denied, 113 S. Ct. 1412 (1998) o.oo. 6

Goncalves v. INS, 6 F.3d 830 (Ist Cir. 1993) ........... 6, 7,8

Gonzales v. INS, 921 F.2d 236 (9th Cir. 1990)... 5, 6

Henry v. INS, No. 91-2252 (7th Cir. Oct. 15, 1993) ....... 6, 7

INS v. Abudu, 485 U.S. 94 (1988) ...cccccccccccccee ee. 4

Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993) ..... 6

Katsis v. INS, 972 F.2d 1331 (3d Cir. 1992) ................. 3

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

cert. pending, No. 93-6427 .............ccccccssccssesecscecececeeeee., 5-6, 8

Rivera v. INS, 810 F.2d 540 (5th Cir. ___) aL eee 6

Silva, In re, 16 1. & N. Dee. 26 (BIA I ae 2

Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981) ........ 2

Vargas v. INS, 938 F.2d 358 (2d Cir. 1991)... 6

Statutes and regulations:

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978:

$ 545(d), 104 Stat. 5066 ooo... cccccccccccccccecseceece....... 6

Pm WE OS UE Ssecteeccrcexsconsocereecesecsessesecs..<.... 2

LV

Statutes and regulations—Continued: Page

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RE FG TE. I caccverstcenecosvcacenctaceniteeinsannenn 2

Miscellaneous and Technical Immigration and Naturaliza

tion Amendments of 1991, Pub. L. No. 102-232, § 3807(b),

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8 U.S.C. 1182(e) (Supp. TV 199Z) ........cccccscccccceceseres 2, 3, 4, 5, 7

8 U.S.C. 1251aX2KB) (Supp. LV 198Z) .....cccccscsccccceceereess ya

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8 U.S.C. 1251(d)(2)(B) (Supp. [FV 1992) 20.00... ccccceeeeeeeeeeees 2

8 U.S.C. 1252(b) (1988 & Supp. TV 1992) 2.0... eee eeee eee i

8 C.F.R.:

section

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Section 243.1 sedeanies phdenseaestbadettusrbenvedtenpethasserseseranen 5

In the Supreme Court of the Gnited States

OCTOBER TERM, 1993

No. 93-423

STAVROS KATSIS, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-23a) Is

reported at 997 2d 1067. The opinion of the Board of

Immigration Appeals (Pet. App. 24a-27a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 6, 1993. A petition for rehearing was denied on Au-

gust 9, 1993. Pet. App. la-2a. The petition for a writ of

certiorari was filed on September 16, 1995. The jurisdic-

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

(1)

STATEMENT

1. Petitioner is a native and citizen of Greece who was

admitted to this country as a lawful permanent resident

in 1983. In 1988, he was convicted of a controlled sub-

stance offense, for which he served a prison term of about

two years. The Immigration and Naturalization Service

(INS) commenced deportation proceedings against peti-

tioner in January 1989, contending that the conviction

rendered him deportable under & U.S.C. 1251(a)(11)

(1988).' At his deportation hearing, petitioner conceded

that he was deportable, but sought discretionary relief

from deportation under 8 U.S.C. 1182(¢).2) The immigra-

tion judge concluded that petitioner was deportable and

that he was eligible for relief under Section 1182(c),* but

' The grounds for deportation were reorganized by Section

602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 5077, and the provision cited in the text now appears as 8

U.S.C. 1251(a2)0B) (Supp. TV 1992). The amendment does not

apply to this case because the 1990 Act states that the amendments

set forth in Section 602 “shall not apply to deportation proceedings

for which notice has been provided to the alien before March 1,

1991.” § 6O2(d), 104 Stat. 5OS2.

“ That provision was amended by Section 307(b) of the Miscella-

neous and Technical Immigration and Naturalization Amendments

of 1991, Pub. L. No. 102-2382, 105 Stat. 1754, but the revisions have

no effect on this case. For convenience, references to & U.S.C,

1182(c) are to the currently codified version of the provision.

* Although the statute on its face authorizes the Attorney Gen-

eral only to admit aliens returning to a lawful domicile in this

country, the Board of Immigration Appeals and various courts of

appeals have concluded that the Section also authorizes the Attor-

ney General to grant relief from deportation. See, e.g., Tapia-

Acuna v. INS, 640 F.2d 223, 224-225 (9th Cir. 1981); Francis v.

INS, 582 F.2d 268, 270-278 (2d Cir. 1976); In re Silva, 16 1. & N.

Dec. 26, 28-30 (BIA 1976); see also id. at 32 (Appleman, concurring)

3

declined to grant relief because of the seriousness of pe-

titioner’s offense. Petitioner appealed to the Board of

Immigration Appeals, challenging the denial of relief un-

der Section 1182(c), but the Board affirmed. The court of

appeals denied a petition for review in an unpublished

opinion dated July 17, 1992. See Pet. App. 5a-6a; Katsis v.

INS, 972 F.2d 1331 (8d Cir. 1992) (Table).

2. On August 17, 1992, after the court of appeals de-

nied his petition for review of the order of deportation,

petitioner filed a motion to reopen his deportation pro-

ceedings before the Board. The Board denied the mo-

tion. Pet. App. 24a-27a. It explained that an alien seek-

ing reopening must show his prima facie eligibility for

the relief sought, and that relief under Section 1182(c) is

limited to lawful permanent residents. Pet. App. 25a. Re-

lying on its decision in In re Cerna, Interim Dec. No.

3161 (BIA Oct. 7, 1991), aff’d, Cerna v. INS, 979 F.2d 212,

213 (11th Cir. 1992) (Table) (per curiam), the Board rea-

soned 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 administra-

tively final order of deportation that deprived him of

permanent resident status. Pet. App. 25a-26a.

3. The court of appeals denied petitioner’s petition for

review of the Board’s denial of his motion to reopen. Pet.

App. 3a-23a. The court noted its obligation under

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), to defer to the Attor-

ney General’s construction of the relevant provisions of

the Immigration and Nationality Act (Pet. App. 7a), and

then conducted an extensive analysis of the reasonable-

ness of the Board’s interpretation (id. at 1la-20a). The

(noting that this interpretation of Section 1182(c) “may be desir-

able, but it is not what Congress wrote, nor what it intended”).

court concluded that the Board’s interpretation is

“reasonable, and not arbitrary or capricious,” because it

(1) discourages unnecessary litigation and promotes

finality; (2) reduces both Board and circuit court ex-

posure to multiple, piecemeal requests for considera-

tion of one kind or another; and (3) reduces the incen-

tive to file meritless petitions for review in the cir-

cuit courts, which lessens the burdens on those

courts.

Id. at 19a-20a.

ARGUMENT

1. Petitioner argues (Pet. 4-10) that the Board erred

in denying his motion to reopen his deportation proceed-

ings on the ground that he was ineligible for the relief he

sought at the time he filed the motion to reopen. As this

Court has explained, an alien seeking to reopen deporta-

tion proceedings must, inter alia, make a prima facie

showing that he is eligible for the relief he seeks. JNS v.

ig 485 U.S. 94, 104 (1988). To be eligible for relief

under 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 perma-

nently in the United States * * *, such status not hav-

ing changed.”

Hence, the principal question in this case is whether

petitioner’s status as a lawful permanent resident alien

“changed,” for purposes of 8 U.S.C. 1101(a)(20), at the

time the Board issued a final order of deportation. In

light of the statutory mandate that deportation decisions

“shall be final” upon completion of administrative pro-

ceedings, see 8 U.S.C. 1252(b) (1988 & Supp. IV 1992);

5

8 C.F.R. 243.1 (“an order of deportation * * * shall be-

come final upon dismissal of an appeal by the Board”), the

Board consistently has held that a permanent resident

alien’s status changes at that time and that the alien is

not thereafter eligible to seek relief that is dependent on

permanent resident status. See In re Cerna, Interim

Dec. No. 3161 (BIA Oct. 7, 1991), aff’d, Cerna v. INS, 979

F.2d 212, 213 (11th Cir. 1992); see also Gonzales v. INS,

921 F.2d 236, 238-239 (9th Cir. 1990) (similar analysis be-

fore Cerna).

The further question presented by this case is, if a

permanent resident alien’s status is “changed” upon en-

try of a final order of deportation, whether a motion to

reopen is a proper vehicle for reversing that change of

status. Because a motion to reopen is, in the Board’s

view, a request for a new decision based on evidence or

arguments not before the original tribunal, the Board

has concluded that aliens as to whom it has issued a final

order of deportation should not be able to reopen their

deportation proceedings to secure relief from deportation

based on Section 1182(c). Cerna, slip op. 6.4

2. Petitioner correctly notes (Pet. 5-6; Pet. Supp. Br.

1-5) that the courts of appeals have reached conflicting

results on the question presented by the petition. Like

the Third Circuit in this case, the eourts of appeals for

the Fourth, Fifth, and Eleventh Circuits accept the

analysis set forth by the Board in Cerna. Nwolise v.

INS, 4 F.3d 306, 310-312 (4th Cir. 1993), petition for cert.

* As the Board concluded in Cerna, that rule does permit aliens

to file motions to reconsider the original decision, because such a

motion does not seek a new decision based on new evidence, but

instead seeks to convince the tribunal that it erred in resolving the

matters placed before it when it originally ruled. See Cerna, slip

op. 5-6.

6

pending, No. 93-6427; Ghassan v. INS, 972 F.2d 681 (5th

Cir. 1992), cert. denied, 113 S. Ct. 1412 (1993); Rivera v.

INS, 810 F.2d 540 (Sth Cir. 1987); Jaramillo v. INS, 1

8d 1149, 1152-1156 (ith Cir. 1993) (en bane). On the

other hand, the Board’s analysis has been rejected by the

courts of appeals for the First, Seventh, and Ninth Cir-

cuits.” Goncalves v. INS, 6 F.3d 830, 832-835 (st Cir.

1993); Henry v. INS, No. 91-2252 (7th Cir. Oct. 15, 1993),

slip op. 13-28; Butros v. INS, 990 F.2d 1142, 1144-1146 (9th

Cir. 1993) (en banc).”

Notwithstanding the conflict in the appellate deci-

sions, we do not believe that the question merits review

hy the Court at this time. As we explained in our brief in

opposition to the certiorari petition in Ghassan v. INS,

cert. denied, 113 S. Ct. 1412 (1993) (No. 92-872),’ Section

545(d) of the Immigration Act of 1990, Pub. L. No. 101-

649, 104 Stat. 5066, directed the Attorney General to

promulgate regulations that would delineate more

precisely the circumstances under which motions to re-

open would be permissible.” After extensive internal de-

liberations, those regulations now have been prepared

® The Second Circuit also has reached a contrary result, Vargas

v. INS, 988 F.2d 358, 360-364 (1991), but that decision (issued

before the Board's opinion in Cerna) rested on the lack of serious

administrative consideration of the question at that time, see id. at

361-363. Accordingly, it is not clear that the Second Circuit would

adhere to Vargas in light of the Board’s detailed consideration of

the question in Cerna.

6 The decision in Butros expressly repudiated the court’s ear-

lier decision in Gonzales v. INS, 921 F.2d 236, 238-239 (9th Cir.

1990). Butros, 990 F.2d at 1145,

7 We have provided counsel for petitioner with a copy of our

brief in Ghassan.

* The Immigration Act of 1990 required issuance of those

regulations by the spring of 1991. § 545(d), 104 Stat. 5066.

7

and are in the final stages of review at the highest levels

of the Justice Department. We have been informed that

the regulations are expected to be issued in the near

future and that they will specifically address the

question presented by the certiorari petition in this

case.

The forthcoming regulations render review by the

Court unnecessary. Each of the courts of appeals that

has rejected the government’s position has relied heavily

on the notion that the analysis of the Board in Cerna—

that aliens seeking relief under Section 1182(c) cannot

file motions to reopen—is inconsistent with the unquali-

fied provision in 8 C.F.R. 3.2 authorizing motions to re-

open. See Goncalves v. INS, 6 F.3d 830, 832-833 (1st Cir.

1993); Henry v. INS, No. 91-2252 (7th Cir. Oct. 15, 1993),

slip op. 21-22; Butros v. INS, 990 F.2d 1142, 1145 (9th Cir.

1993) (en bane). Accordingly, the forthcoming regula-

tions of the Attorney General expressly addressing the

subject of motions to reopen in order to seek discre-

tionary relief under Section 1182(c) will eliminate any

basis for future appellate rulings that the Board's dispo-

sition of such motions to reopen is inconsistent with the

governing regulations. The regulations also will render

the current circuit conflict concerning the interpreta-

tion of the soon-to-be-superseded regulations of no con-

tinuing importance.

In light of these developments, the Solicitor General

has decided not to file petitions for a writ of certiorari to

review the decisions of the First and Seventh Circuits in

Goncalves and Henry that rejected the Board's position

under the existing regulations.” Indeed, the First Cir-

® The Solicitor General likewise declined to file a petition for a

writ of certiorari last summer seeking review of the Ninth Cir-

cuit’s decision in Butros, in light of the prospect (which now is

8

cuit specifically suggested that the problem be resolved

by amending the regulations, in lieu of seeking review in

this Court. See Goncalves, 6 F.3d at 835-836. Consistent

with that approach—and with the Court’s denial of cer-

tiorari in Ghassan—the petition for a writ of certiorari

in this case should be denied."

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREWS. DAYS, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

CHARLES E. PAZAR

Attorney

DECEMBER 1993

soon to be realized) that the statutorily mandated revision of the

reopening regulations specifically would address the question pre-

sented here).

' We also are filing today a brief in opposition to the petition in

Nwolise v. INS, No. 93-6427, which seeks review of the Fourth

Circuit’s decision sustaining the Board’s approach under the cur-

rent regulations.

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