                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2008

Vakker v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-1949




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                                     PRECEDENTIAL

       IN THE UNITED STATES COURT
                OF APPEALS
           FOR THE THIRD CIRCUIT


                  NO. 06-1949


                BORIS VAKKER
                  Petitioner

                        v.

ATTORNEY GENERAL OF THE UNITED STATES
             Respondent


On Petition for Review of an Order of the Board of
                Immigration Appeals
                 No. A79-014-570
   Immigration Judge: Hon. Walter A. Durling


 Submitted Pursuant to Third Circuit LAR 34.1(a)
               February 12, 2008

BEFORE: SLOVITER, SMITH and STAPLETON,
             Circuit Judges

         (Opinion Filed: March 14, 2008)
Sandra L. Green
2 nd Floor
2001 East Market Street
York, PA 17402
  Attorney for Petitioner

Peter D. Keisler
Douglas E. Ginsburg
John D. Williams
Lyle D. Jentzer
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
 Attorneys for Respondent




                 OPINION OF THE COURT




STAPLETON, Circuit Judge:

        In the course of removal proceedings brought against him
by the Immigration and Naturalization Service, Boris Vakker, a
“paroled” alien, requested that the Immigration Judge (“IJ”)
permit him to renew a previously denied application for
adjustment of status. The IJ denied the request. While the
proceedings were on appeal to the Board of Immigration

                               2
Appeals (“BIA”), Vakker filed a motion with the BIA to remand
his case to the IJ for reconsideration of the adjustment of status
issue predicated upon an intervening case of this court. The
BIA denied the motion to remand, and Vakker petitions this
court for review of that ruling. For the reasons that follow, we
will deny the petition.

                                I

       Petitioner, a native of Russia, initially arrived in the
United States after being granted “parole” status. 8 U.S.C. §
1182(d)(5). He then applied for adjustment of status. 8 U.S.C.
§ 1255; 8 C.F.R. 245.7. However, while that application was
pending, he was convicted of conspiracy to commit alien
smuggling.     His conviction rendered him ineligible for
adjustment of status, 8 U.S.C. § 1182(a)(6)(E), and the
Immigration and Naturalization Service (“INS”), now the
Department of Homeland Security’s Citizen and Immigration
Services (“CIS”), therefore denied his application.

       Following his conviction, the INS served petitioner with
a Notice to Appear, charging him with removability on three
grounds: conviction of a crime involving moral turpitude, lack
of entry documents, and alien smuggling. See 8 U.S.C. §§
1182(a)(2)(A)(i)(I), 1182(a)(7)(A)(i)(I), 1182(a)(6)(E)(i). The
IJ found him removable. Petitioner sought asylum, withholding
of removal and protection under the Convention Against Torture
(“CAT”). Petitioner also sought to renew his application for
adjustment of status.

       The IJ determined        that petitioner qualified     for

                                3
withholding of removal. The IJ, however, denied petitioner’s
request to renew his adjustment of status application because, it
concluded, then-applicable regulations precluded all “paroled”
aliens from seeking adjustment of status, 8 C.F.R. §
1245.1(c)(8) (repealed May 12, 2006), invalidated by Zheng v.
Gonzales, 422 F.3d 98 (3d Cir. 2005),1 and the IJ therefore
lacked jurisdiction over such an application.

        The Attorney General appealed the IJ’s decision granting
petitioner withholding of removal to the BIA. Petitioner did not
initially appeal the IJ’s denial of his request to renew his
“adjustment of status” application; however, after this court’s
ruling in Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005), which
invalidated the regulation on which the IJ had relied, petitioner
filed a motion with the BIA to remand the proceedings to the IJ
for reconsideration of his request to renew his “adjustment of
status” application.

       The BIA issued a decision in which it dismissed the
Attorney General’s appeal because it agreed with the IJ that
petitioner is eligible for withholding of removal. In the same
decision, the BIA also denied petitioner’s motion to remand on
the “adjustment of status” issue. The BIA acknowledged that
Zheng invalidated the authority upon which the IJ had relied.
However, the BIA ruled that petitioner was nevertheless
ineligible to renew his adjustment of status application “because
he [did] not meet the renewal requirements under 8 C.F.R. §


    1
     8 C.F.R. § 1245.1(c)(8) has since been replaced with an
unrelated regulation.

                               4
1245.2(a).” A.R. at 11.

       Vakker petitions this court for review of the BIA’s denial
of his motion to remand.

                               II

       This court generally reviews motions to remand
deportation proceedings, like motions to reopen or reconsider,
for abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 292,
279-83 (3d Cir. 2005); Shardar v. Attorney General, 503 F.3d
308, 311-12 (3d Cir. 2007). However, this court’s review of the
legal standards that the BIA applied when it denied Vakker’s
motion to remand is de novo: “questions of law, such as whether
the BIA applied the correct legal standard in considering the
motion to reopen and the underlying [legal] claim . . . are []
reviewed de novo.” Fadiga v. Attorney General, 153-54 (3d
Cir. 2007). See also Cabrera-Perez v. Gonzales, 456 F.3d 109,
115 (3d Cir. 2006).

                               III

       Vakker asserts that, following Zheng, he is facially
eligible to renew his adjustment of status application, and that
the BIA’s decision denying his motion to remand on that issue
was inadequate and denied him due process of the law. The
Attorney General raises a jurisdictional challenge to Vakker’s
petition, which we will address before reaching the merits of
Vakker’s claims.

                               A

                               5
        The Attorney General argues that Vakker’s petition for
review was untimely. Pursuant to 8 U.S.C. § 1252(b)(1), “a
petition for review must be filed not later than thirty days after
the date of the final order of removal.” We have jurisdiction
over Vakker’s petition under 8 U.S.C. § 1252(a)(1) and §
1252(b)(2) only if the petition was timely. See Stone v. I.N.S.,
514 U.S. 386, 405 (1995) (“[j]udicial review provisions . . . are
jurisdictional in nature”). We conclude that the petition was
timely.

        The BIA’s February 14, 2006, “decision and order”
resolved several issues and concluded with three “orders”: one
denying Vakker’s motion to remand, one dismissing the
Attorney General’s appeal, and one remanding the proceedings
to the IJ for certain identity and background checks that are a
prerequisite to the entry of any order granting withholding of
removal.2 Upon completion of those checks, the IJ issued a final
order on March 13, 2006, granting Vakker withholding of
removal. Vakker filed his petition for review on March 17,
2006. App. at 2. Therefore, his petition was untimely if the
BIA’s decision was the pertinent “final order,” and it was timely
if the IJ’s order upon remand was the “final order.”

        Ordinarily, when the BIA remands removal proceedings
to the IJ pursuant to 8 C.F.R. §§ 1003.47(h), the “final order” in
the removal proceedings is the IJ’s order following remand. In


   2
   The BIA remanded the petition to the IJ in accordance with
8 C.F.R § 1003.1(d)(6) and 8 C.F.R. § 1003.47(h). App. at 11.

                                6
re Fabricio Alcantara-Perez, 23 I. & N. Dec. 882 (B.I.A. Feb.
23, 2006).3 The Attorney General argues, however, that the
various orders in the BIA’s February 14, 2006, decision became


   3
    The regulations themselves are fairly clear in this regard.
For example, 8 C.F.R §. 1003.1(d)(6), provides:

       [t]he Board shall not issue a decision affirming or
       granting to an alien an immigration status, relief
       or protection from removal, or other immigration
       benefit, as provided in 8 C.F.R. § 1003.47(b), that
       requires completion of identity, law enforcement
       or security investigations or examinations if:
       (A)    identity, law enforcement or security
       investigations or examinations have not been
       completed during the proceedings; . . .

8 C.F.R. §1003.1(d)(6)(i)(A) (emphasis added). Similarly, §
1003.47 provides as follows:

       (h) Adjudication upon remand from the Board. In
       any case remanded pursuant to 8 C.F.R.
       §1003.1(d)(6), the immigration judge shall
       consider the results of the identity, law
       enforcement or security investigations or
       examinations . . . . The immigration judge shall
       then enter an order granting or denying the
       immigration relief sought.

8 C.F.R. § 1003.47(h) (emphasis added).

                               7
“final” at different times: that the BIA’s order denying
Vakker’s motion to remand was a “final order,” even if
Vakker’s removal proceedings became final later, in the IJ’s
March 13 order. We do not interpret the proceedings in that
manner.

       Certainly, orders denying motions to remand, like orders
denying motions to reopen or reconsider, can qualify as
independent final orders over which this court can, in
appropriate circumstances, assume jurisdiction. See Korytnyuk
v. Ashcroft, 396 F.3d 292, 279-83 (3d Cir. 2005); Shardar v.
Attorney General, 503 F.3d 308, 311-12 (3d Cir. 2007); Cruz v.
Attorney General, 452 F.3d 240, 246 (3d Cir. 2006); Sevoian v.
Ashcroft, 290 F.3d 166, 169-75 (3d Cir. 2002). Indeed, this
court has stated that:

       we can independently review the denial of a
       motion to reopen or reconsider . . . [and] a proper
       petition for review must be filed within [the
       appropriate time] of the specific order sought to
       be reviewed.

Alleyne v. I.N.S., 879 F.2d 1177, 1180 (3d Cir. 1989) (emphasis
in original; internal quotation omitted). However, these cases do
not establish that an order denying a motion to remand
necessarily becomes “final” immediately, irrespective of the
status of the proceedings in which it is entered.

       8 C.F.R. § 1003.2 (c)(4) provides: “A motion to reopen
a decision rendered by an Immigration Judge . . . that is filed
while an appeal is pending before the Board, may be deemed a

                               8
motion to remand for further proceedings before the
Immigration Judge . . . from whose decision the appeal was
taken. Such motion may be consolidated with, and considered
by the Board in connection with, the appeal to the Board.” Id.
(emphasis added).

        Here, the BIA chose to consolidate petitioner’s motion to
remand with the Attorney General’s appeal of Vakker’s removal
proceedings rather than to entertain that motion as an
independent proceeding. It issued just one decision which
addressed both the Attorney General’s appeal and Vakker’s
motion. This was, of course, not surprising given that petitioner
had originally raised both issues – relief from deportation, and
renewal of his adjustment of status application – in the same
hearings before the IJ, and the IJ had addressed both issues in
those hearings. Petitioner presented the “adjustment of status”
issue to the BIA in a motion to remand rather than in a
traditional appeal only because the motion relied on intervening
case law published after the IJ issued his original decision.
Therefore, the two issues had in fact been considered and
addressed jointly both by the IJ and by the BIA. As a result of
the BIA’s consolidation of these matters, it follows that its
February 14, 2006, order did not finally adjudicate all issues in
the proceeding in which it was entered and was therefore not a
final order.

        The Attorney General identifies no authority indicating
that the pertinent judicial review provisions operated to render
the BIA’s orders “final” at different times under the
circumstances of this case, and we find none. The Attorney
General relies on Popal v. Alberto Gonzales, 416 F.3d 249 (3d

                               9
Cir. 2005). That case is inapposite: it concerned exhaustion
rather than what constitutes a “final order,” and its reasoning
does not support the notion that there were multiple “final
orders” in this case. The most sensible interpretation of 8
U.S.C. § 1252(b)(1) in this case is that the consolidated
proceedings became “final” at the same time. As the BIA has
explained, once the BIA determines that an alien is “eligible for
the relief requested” and remands the deportation proceeding to
the IJ for the requisite background checks, the IJ’s ensuing order
“granting relief . . . then becomes the final administrative order
in the case.” In re Fabricio Alcantara-Perez, 23 I. & N. Dec. at
884-85. Although In re Fabricio Alcantara-Perez did not
address the precise question before us, it recognized that the IJ’s
final order applies to the “case,” rather than “issue” or the “relief
granted.” That was true irrespective of the fact that such
remands do not “provid[e] an opportunity for the parties to
relitigate issues that were previously considered and decided.”
Id. We find no reason to reach a different conclusion in this
case, and we hold that the BIA’s denial of Vakker’s motion to
remand became final at the same time as the remainder of
Vakker’s “case”: at the time of the IJ’s March 13, 2006, order.
Vakker’s petition for review was therefore timely.

                                 B

       Vakker argues that he had become “at least facially
eligible” to renew his application for adjustment of status
following this court’s decision in Zheng v. Gonzales, 422 F.3d
98 (3d Cir. 2005), and that the BIA’s decision denying his
motion to remand was inadequate because the BIA failed to
specify which requirements rendered him ineligible. Vakker

                                 10
also insists that the BIA’s decision violated his Due Process
rights. Finally, Vakker contends that we should grant his
petition in order to afford the BIA an opportunity to assess his
motion in light of interim regulations passed by CIS subsequent
to the BIA’s decision.

       The BIA’s decision was neither inadequate for failing to
“specify which of the mandated requirements Petitioner failed
to meet,” Petitioner’s Br. at 25, nor violated Vakker’s Due
Process rights. The BIA’s opinion recognized that our decision
in Zheng, 422 F.3d at 119-20, invalidated the prior 8 C.F.R.
§1245.1(c)(8), insofar as it had categorically rendered all
“paroled” aliens ineligible to apply for adjustment of status.
App. at 10-11. However, the BIA ruled that Vakker was
nevertheless ineligible to have his request to renew his
adjustment of status application reconsidered in the course of his
removal proceedings. As the BIA explained, “the respondent
remains ineligible to renew his adjustment application because
he does not meet the renewal requirements under 8 C.F.R. §
1245.2(a).” App. at 10-11. At the time of the BIA’s decision,
that regulation set forth the following rule:

       An adjustment application by an alien paroled
       under section 212(d)(5) of the Act, which has
       been denied by the director, may be renewed in
       removal proceedings under 8 CFR part 1240 only
       if:

       (i) the denied application must have been properly
       filed . . . ; and


                               11
       (ii) The applicant’s later absence and return to the
       United States was under the terms of an advance
       parole authorization on Form I-512 granted to
       permit the applicant’s absence and return to
       pursue the previously filed adjustment
       application.

8 C.F.R. § 1245.2(a)(1) (amended May 12, 2006).

        Petitioner was a “paroled” alien seeking to renew a
previously denied application, and he does not argue that the
exception specified in § 1245.2(a)(1)(i) and (ii) applies to him.
Petitioner was “in removal proceedings,” 8 C.F.R. §
1245.2(a)(1) (amended May 12, 2006), both when he filed his
motion to remand and when the BIA denied it. Vakker points
to no reason why, given the plain language of § 1245.2(a)(1), he
would have been eligible to renew his application in his removal
proceedings before the IJ. Therefore, the BIA’s decision to
deny Vakker’s motion to remand was not in error. Similarly, the
BIA’s decision did not deny Vakker due process of the law
because the BIA considered Vakker’s motion and properly
denied it, providing adequate explanation and authority to
support its decision.

       We disagree with petitioner insofar as he argues that the
BIA’s decision was insufficient because it “cited no factor that
rendered the Zheng decision inapplicable to Petitioner’s request
for remand.” Petitioner’s Br. at 25. The BIA cited Jiang v.
Gonzales, 425 F.3d 649 (9th Cir. 2005), which held that §
1245.2(a), unlike the regulation invalidated in Zheng, was not
contrary to the INA. Id. at 653 (“we reject Jiang’s claim that 8

                               12
C.F.R. § 1245.2(a) . . . is invalid because it violates INA §
245(a) . . . . [That regulation] is not inconsistent with the
provisions of the INA.”). In Zheng we held that 8 C.F.R. §
1245.1(c)(8) (repealed May 12, 2006) was contrary to the
Congressional intent behind INA § 245(a) because it
categorically precluded all “parolees” from having their
adjustment of status applications considered in the first instance.
The court pointed out in Jiang that the same rationale did not
apply to § 1245.2(a)(1) (amended May 12, 2006), which (with
limited exceptions) only precluded paroled aliens from having
a previously denied application re-considered during removal
proceedings.

        Although the CIS recently revised § 1245.2(a)(1), that
revision occurred after the BIA issued its decision, and in any
event, the revised regulations appear to offer Vakker no greater
support than the previous versions. The revised regulations
state:

       (i) In General. In the case of any alien who has
       been placed in deportation proceedings or in
       removal proceedings (other than as an arriving
       alien), the immigration judge hearing the
       proceedings has exclusive jurisdiction to
       adjudicate any application for adjustment of status
       the alien may file.

       (ii) Arriving Aliens. In the case of an arriving
       alien who is placed in removal proceedings, the
       immigration judge does not have jurisdiction to
       adjudicate any application for adjustment of status

                                13
       filed by the arriving alien unless:           [four
       enumerated conditions are satisfied].

8 C.F.R. § 1245.2(a)(1). “Paroled” aliens are generally “arriving
aliens,” see 8 C.F.R. §§ 1.1(q), 1001.1(q); Zheng, 422 F.3d at
110-11 and n.10, and petitioner does not argue that he is not an
“arriving alien.” Nor does petitioner argue that the §
1245.2(a)(1) exception, see § 1245.2(a)(1)(ii)(A)-(D), applies to
him. Instead, petitioner argues that “pursuant to the interim
rules, the removal proceedings cannot be concluded without a
determination from the agency regarding [his] application.”
Petitioner’s Br. at 27. He offers no support for that argument
and no explanation for why it is consistent with §
1245.2(a)(1)(ii). Petitioner further emphasizes that he is no
longer in removal proceedings because a final order has issued
in his proceedings. However, he was in removal proceedings
both when he filed his motion with the BIA, and when the BIA
denied it. Furthermore, petitioner seeks to have his claim
remanded to the IJ; if he is no longer in removal proceedings,
under the interim regulations the IJ plainly lacks jurisdiction to
hear the claim. 8 C.F.R. § 245.2(a)(1) (“USCIS has jurisdiction
to adjudicate an application for adjustment of status filed by an
alien, unless the Immigration Judge has jurisdiction to
adjudicate the application under 8 C.F.R. § 1245.2(a)(1).”); 8
C.F.R. § 1245.2(a)(1) (see supra). Therefore, petitioner has
offered no argument why the new regulations would better aid
his cause than the version in force at the time the BIA decided
his motion. We express no opinion regarding whether Vakker
might be entitled to renew his application in another manner, but
the BIA did not err when it denied his motion to remand his
proceedings in order to renew his application before the IJ.

                               14
                             IV

      For the foregoing reasons, we will deny the petition for
review.




                              15
