No. 95-1483 In the Supreme Court of the United States OCTOBER TERM, 1995 ARTURO YANEZ-PENELOZA v. IMMIGRATION AN 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 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether an individual who has been found report- 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. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 1 Argument . . . . 3 Conclusion . . . . 7 TABLE OF AUTHORITIES Cases: Acosta-Montero v. INS, 62 F.3d 1347 (llth Cir. 1995) . . . . 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 (llth Cir. 1992) . . . . 3 Garcia-Hernandez v. INS, 821 F.2d 222 (5th Cir. 1987) . . . . 3 Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), cert. denied, 507 U.S. 971 (1993) . . . . 3, 5 Goncalves v. INS, 6 F.3d 830 (lst Cir. 1993) . . . .1, 5, 6, 7 Henry v. INS, 8 F.3d 426 (7th Cir. 1993) . . . . 5, 6 ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) . . . . 4, 5 INS' V. Abudu, 485 U. S. 94 (1988 ) . . . . 4 INS v. Doherty, 502 U.S. 314 (1992) . . . . 4 Katsis v. INS, 997 F.2d 1067(3d Cir. 1993), cert. denied, 114S. Ct. 902(1994) . . . . 5 Lok, In re, 18 I. & N. Dec. 101 (BIA 1981), aff'd on other grounds,681 F.2d 107 (2d Cir. 1982) . . . . 4-5 Nwolise v. INS, 4 F.3d 306(4th Cir. 1993), cert. denied. l14S. Ct. 888(1994) . . . . 5 Prichard-Ciriza v. INS, 978 F.2d 219(5th Cir. 1992) . . . . .3 Stone v. INS, 115 S. Ct. 1537(1995) . . . . 2, 5 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases Continued: Vargas v. INS, 938 F. 2d 358(2d Cir. 1991) . . . . 5 Statutes and regulations: Immigration Act of 1990, Pub. L. No. 101-649, 545(d), 104 Stat. 5066 . . . . 5 Immigration and Nationality Act, 8 U.S.C. 1101 et seq.: 8 U.S.C. l101(a)(20) . . . . 4 8 U.S.C. l105a(a)(l) . . . . 2 8 U.S.C. 1182(C) . . . . 2, 3, 4, 5, 6, 7 8 U.S.C. 1251(a)(l)(B) . . . . 2 8 U. S. C. 1252(b)(Supp. IV 1992). . . .4 8 U.S.C. 1254(a)(1) . . . . 2 8 U.S.C. 1325 . . . . 2 8 C.F.R.: Section 3.2 . . . . 6 Section 243.1 . . . . 4 Miscellaneous: Attorney General Order No. 2020-96, 61 Fed. Reg. 18,900(1996) . . . . 6 p.18,904(to be codified at 8 C.F.R. l.l(p)) . . . . 6 pp. 18,904-18,905 (to be codified at 8 C.F.R. 3.2(b) (2) and(c)(2)) . . . . 6 p.18,905(to be codified at 8 C.F.R. 3.2(c)(l)) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED 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) ---------------------------------------- Page Break ---------------------------------------- 2 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. Ibid. 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 reportable under 8 U.S.C. 1251(a)(l)(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)(l) 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 reportability and the denial of suspension of deportation. Id. 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 S. 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. Id. 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- ---------------------------------------- Page Break ---------------------------------------- 3 ibility for the relief sought, and that relief under 8 U.S.C. l182(e) is limited to lawful permanent resi- dents. Pet. App. 15. Relying on its decision in In re Cerna,, 20 I. & N. Dee. 399 (BIA 1991), aff'd, 979 F.2d 212, 213(llth 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. Ibid. (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. 1 As this Court has explained, an alien ___________________(footnotes) 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 ---------------------------------------- Page Break ---------------------------------------- 4 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. l182(c), an alien must, among other things, be a lawful permanent resident alien. Under 8 U.S.C. 110l(a)(20), an aIien 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. l101(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 reportability 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. In re Lok, 18 I. &N. Dec. ~01, 106 (BIA 1981], aff'd on other ___________________(footnotes) evidence in finding him reportable. 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). ---------------------------------------- Page Break ---------------------------------------- 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 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 (3d 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 (llth 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 (lst Cir. 1993) (same); Butros v. INS, 990 F.2d 1142, 1144-1146 (9th Cir. 1993) (en bane) (same); Vargas v. INS, 938 F.2d 358, 360-364 (2d Cir. 1991) (same). Notwithstanding that conflict in the 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 ___________________(footnotes) 2 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-f inal." This Court rejected that argument in Stone v. INS, 115 S. Ct. 1537, 1543- 1545 (1995). ---------------------------------------- Page Break ---------------------------------------- 6 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 statut- orily 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(PI and 3.2(c)(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 ___________________(footnotes) 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. ---------------------------------------- Page Break ---------------------------------------- 7 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. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General CHRISTOPHER C. FULLER MADELINE HENLEY Attorneys MAY 1996 ---------------------------------------- Page Break ----------------------------------------