     05-4134-ag
     Rhodes v. Keisler



 1                             UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                           August Term, 2006
 8
 9   (Argued: May 7, 2007                                                Decided: November 7, 2007 )
10
11                                         Docket No. 05-4134-ag
12
13
14
15
16
17                                   MIGUEL RHODES-BRADFORD,
18
19                                               Petitioner,
20
21                                                  – v. –
22
23                           PETER D. KEISLER,* ATTORNEY GENERAL,
24
25                                              Respondent.
26
27
28
29
30
31   Before: FEINBERG, McLAUGHLIN, and CALABRESI, Circuit Judges.
32
33           Petition for review of the Board of Immigration Appeals’ decision reversing an
34   Immigration Judge’s termination of removal proceedings and ordering Petitioner removed. The
35   Board lacks the authority to issue a removal order.
36           The petition is granted in part and dismissed in part; the order of the BIA is vacated; and
37   the case is remanded for further proceedings.
38


             *
              Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General
     Peter D. Keisler is automatically substituted for former Attorney General Alberto R. Gonzales.

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  1
  2                                          JUSTIN CONLON, Law Offices of Michael Boyle, North
  3                                          Haven, Conn., for Petitioner.
  4
  5                                          VICTORIA S. SHIN, Assistant United States Attorney, for
  6                                          Kevin J. O’Connor, United States Attorney for the District
  7                                          of Connecticut (Sandra S. Glover, of counsel), New Haven,
  8                                          Conn., for Respondent.
109
11
12
13    GUIDO CALABRESI, Circuit Judge:

14           Petitioner Miguel Rhodes-Bradford (“Rhodes”), a native and citizen of Jamaica, seeks

15    review of a decision of the Board of Immigration Appeals (“BIA”) reversing a decision of an

16    Immigration Judge (“IJ”) which terminated removal proceedings against Rhodes. In re Miguel

17    Rhodes-Bradford, No. A38 205 238 (B.I.A. June 30, 2005), rev’g No. A38 205 238 (Immig. Ct.

18    Hartford, Conn. Jan. 21, 2004). The BIA found that Petitioner’s Connecticut conviction for first-

19    degree larceny rendered him removable as an alien convicted of an aggravated felony. 8 U.S.C. §

20    1227(a)(2)(A)(iii); see also 8 U.S.C. § 1101(a)(43)(G) (including “theft offense[s]” within the

21    definition of “aggravated felony”). The BIA then ordered Petitioner removed.

22           Petitioner raises two issues before this Court. First, he asserts that the BIA has no

23    authority to order his removal in the first instance, absent an IJ decision to that effect. Second, he

24    argues that his first-degree larceny conviction does not constitute a “theft offense” rendering him

25    removable under the Immigration and Nationality Act (“INA”). Because we agree with

26    Petitioner on the first issue, and therefore remand, we do not have jurisdiction to reach the

27    second.

28



                                                       -2-
 1   BACKGROUND

 2             Rhodes was admitted to the United States as an immigrant on November 22, 1983. He is

 3   a lawful permanent resident and has three children who are United States citizens. On July 7,

 4   1998, he was convicted in Connecticut Superior Court, following guilty pleas, (a) of larceny in

 5   the first degree, in violation of Conn. Gen. Stat. § 53a-122, and (b) of first-degree failure to

 6   appear, in violation of Conn. Gen. Stat. § 53a-172. The government initiated removal

 7   proceedings against Rhodes on November 28, 2003. Rhodes moved to terminate removal

 8   proceedings on the ground that, under the categorical approach utilized by this Circuit, see

 9   Abimbola v. Ashcroft, 378 F.3d 173, 176-77 (2d Cir. 2004), he had not committed an aggravated

10   felony which would render him removable. This was so, he asserted, because the Connecticut

11   larceny statute is divisible and the record did not indicate which subsection he was convicted of

12   violating and because certain acts falling within the Connecticut definition of first-degree larceny

13   do not fall within the federal definition of a “theft offense.” He also argued that the Connecticut

14   failure-to-appear offense encompassed activity that was not an aggravated felony under federal

15   law, and thus, under the categorical approach, that conviction did not render him removable,

16   either.

17             Immigration Judge Michael W. Straus ruled that the government had not met its burden

18   of proving that Petitioner had been convicted of a federal aggravated felony. As a result, the IJ

19   held that Petitioner was not removable. The BIA reversed, holding that a conviction under

20   Connecticut’s first-degree larceny statute categorically qualifies as an aggravated felony. After

21   concluding that Rhodes was therefore removable, the BIA continued: “[Petitioner] made no

22   requests for relief at the hearing below . . . . We accordingly will order [him] removed to Jamaica


                                                      -3-
 1   . . . .” Rhodes filed a timely petition for review of the BIA’s decision.

 2

 3   DISCUSSION

 4          “The term ‘order of deportation’ means the order of the special inquiry officer, or other

 5   such administrative officer to whom the Attorney General has delegated the responsibility for

 6   determining whether an alien is deportable, concluding that the alien is deportable or ordering

 7   deportation.” 8 U.S.C. § 1101(a)(47)(A). A “special inquiry officer” is an IJ, see 8 C.F.R. § 3.0

 8   (noting that “immigration judges” are “referred to in some regulations as special inquiry

 9   officers”); Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883 n.7 (9th Cir. 2003), and “deportable” is

10   synonymous with “removable,” Evangelista v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir. 2004).

11          In Lazo v. Gonzales, 462 F.3d 53 (2d Cir. 2003) (per curiam), we held that, when the IJ

12   makes a finding of removability but declines to order removal, the BIA has the authority to issue

13   a removal order. We concluded that, in such circumstances, the BIA does not, in fact, order the

14   removal; rather, it simply “remove[s] an impediment to the removal that was ordered by the IJ.”

15   Id. at 54. We however explicitly declined in Lazo to rule on the issue that is currently before us:

16          The government’s alternative argument is that the BIA is empowered to issue
17          orders of removal in the first instance, as an “administrative officer to whom the
18          Attorney General has delegated the responsibility,” within the meaning of 8
19          U.S.C. § 1101(a)(47). Because we hold that an order of removal was issued by
20          the IJ, we do not decide whether the Attorney General has in fact delegated to the
21          BIA the authority to issue orders of removal.
22
23   Id. at 55 n.1. This case squarely presents the issue left open in Lazo: in order for the BIA

24   properly to have ordered Rhodes’s removal when the IJ did not find him removable, the BIA

25   must be an “administrative officer to whom the Attorney General has delegated the responsibility



                                                      -4-
 1   for determining whether an alien is deportable.” 8 U.S.C. § 1101(a)(47)(A).

 2           The government advances three reasons in support of the BIA’s claim of power to issue

 3   orders of removal in the first instance. First, it asserts that, because the statutory language is

 4   ambiguous as to the identity of the “administrative officers” to whom the Attorney General has

 5   delegated his order-of-removal authority, the agency’s interpretation that the BIA has such

 6   authority is due deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council,

 7   Inc., 467 U.S. 837 (1984). Second, the government contends that the BIA’s longstanding

 8   practice of issuing such orders of removal underscores its authority to do so. Third, the

 9   government characterizes the issuance of an order of removal as a merely ministerial action

10   predicated on a finding of removability and asserts that requiring a remand to perform this

11   ministerial task would unnecessarily clog the administrative courts. We address each in turn.

12           First, we do not believe that the statute is ambiguous, nor do we believe that the

13   government has issued an interpretation that is due Chevron deference. After defining an order

14   of deportation, the statute provides that such an order “shall become final upon the earlier of—(i)

15   a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration

16   of the period in which the alien is permitted to seek review of such order by the Board of

17   Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B). The Ninth Circuit construed this to mean

18   that “[t]he BIA (in its sole appearance in the statute) is restricted to affirming such orders, not

19   issuing them in the first instance.” Noriega-Lopez, 335 F.3d at 883. The Fifth Circuit has

20   explicitly adopted the Ninth Circuit’s reasoning on this point. James v. Gonzales, 464 F.3d 505,

21   514 (5th Cir. 2006). We find the Noriega-Lopez analysis persuasive on this issue, and we too

22   adopt it.


                                                       -5-
 1          We moreover note that, even if we were to find ambiguity in the statute, the government

 2   has not presented a construction of the statute that would be entitled to Chevron deference. The

 3   government is unable to cite a single regulation which provides that the BIA may issue removal

 4   orders in the first instance.1 By contrast, when the regulations confer upon IJs the power to issue

 5   removal orders, they do so quite explicitly. See 8 C.F.R. § 1240.1(a)(1) (“In any removal

 6   proceeding pursuant to section 240 of the [Immigration and Nationality] Act, the immigration

 7   judge shall have the authority to . . . [d]etermine removability pursuant to section 240(a)(1) of the

 8   Act; [and] to make decisions, including orders of removal, as provided by section 240(c)(1)(A)

 9   of the Act . . . .”); id. § 1240.12(c) (“The order of the immigration judge shall direct the

10   respondent’s removal from the United States, or the termination of the proceedings, or other such

11   disposition of the case as may be appropriate.”); id. § 1240.13(d) (“If the immigration judge

12   decides that the respondent is removable and orders the respondent to be removed, the

13   immigration judge shall advise the respondent of such decision, and of the consequences for

14   failure to depart . . . .”). The agency’s claim that the BIA has the power to do so is merely a

15   litigation position taken before this Court, and, as such, is not entitled to Chevron deference. See

16   Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988).

17          The government’s second assertion—that the BIA’s practice of issuing orders of removal

18   is evidence of its authority to do so—is likewise without merit. In none of the cases collected by



            1
              The government points to 8 C.F.R. § 1241.1(d) and (f), which it claims expressly
     contemplate the BIA’s issuance of removal orders in the first instance. Even a cursory glance at
     the entirety of 8 C.F.R. § 1241.1, however, makes clear that those provisions presuppose the
     previous issuance of “[a]n order of removal made by the immigration judge.” They thus provide
     no support to the government’s claims that regulations contemplate the issuance of orders of
     removal in the first instance by the BIA.

                                                      -6-
 1   the government was the BIA’s authority to issue such an order challenged; hence, the issue was

 2   not adjudicated in any of these cases. Although we “‘accord substantial deference to the [BIA’s]

 3   interpretations of the statutes and regulations that it administers,’” Diallo v. INS , 232 F.3d 279,

 4   285 (2d Cir. 2000) (quoting Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000)) (alteration in

 5   original), that deference is predicated on those interpretations having been “developed and

 6   applied by the BIA.” Id. at 285-86. A position that has never been adjudicated, but merely taken

 7   for granted, cannot be said to have been “developed and applied,” and we therefore do not accord

 8   it “substantial deference.”

 9          Finally, the government asserts that the issuance of an order of removal is a merely

10   ministerial act and that requiring the BIA to remand to the IJ to perform this mechanical

11   procedure would be unnecessarily wasteful of agency time and resources. We disagree with this

12   characterization. Removal does not follow automatically upon a finding of removability. A

13   removable alien still has other avenues of relief, including withholding of removal, see 8 U.S.C.

14   § 1231(b)(3), cancellation of removal, see id. § 1229b, and relief under the Convention Against

15   Torture, see 8 C.F.R. § 1208.16(c). While the BIA’s holding that Rhodes’s state conviction

16   constituted an aggravated felony, if correct, forecloses certain of these avenues, see, e.g., 8

17   U.S.C. § 1229b(a)(3) (providing that conviction of an aggravated felony renders an alien

18   ineligible for cancellation of removal), it does not foreclose all of them, see 8 C.F.R. §

19   1208.16(c)(4) (providing that either withholding or deferral of removal is available to any alien

20   whom an IJ determines is “more likely than not to be tortured in the country of removal”). Thus,

21   a remand of Petitioner’s case to the IJ would not be purely ministerial; rather, it would give

22   Petitioner the opportunity to raise these avenues of relief, avenues that were not originally argued


                                                      -7-
 1   before the IJ because the IJ found that Petitioner was not removable.

 2           We therefore hold that the BIA does not have the authority to issue removal orders in the

 3   first instance.

 4           This holding, however, raises a jurisdictional issue for this Court that must be addressed.

 5   The government argues that, if the BIA’s removal order was ultra vires, then there has been no

 6   “final order,” which is a statutory prerequisite to judicial review, see 8 U.S.C. § 1252(b)(9). If

 7   correct, this argument would mean that the BIA’s removal order would be a nullity, but that we

 8   would have no authority to remand the case for further proceedings.

 9           We do not believe that the government’s argument is correct. It is, of course, the case

10   that we have jurisdiction to determine whether or not we have jurisdiction over a matter. Ashton

11   v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). We believe that a necessary concomitant of this

12   jurisdiction is the authority to order a remand to remedy those legal errors we have identified in

13   the course of coming to the conclusion that we have no jurisdiction. Or, put differently, where it

14   is necessary to decide the merits in order to determine whether or not we have jurisdiction, and

15   where a determination of those merits yields the conclusion that we do not have jurisdiction, and

16   where that lack of jurisdiction would make it impossible for us to give effect to the merits

17   question that we have already decided, then we retain the inherent authority to remand the case to

18   fix the defects that we have identified. If this were not the case, then there would be no remedy

19   in the courts for ultra vires behavior, and this would raise serious due process concerns. In

20   reaching this conclusion, we join the Fifth Circuit. See James, 464 F.3d at 512 (“We retain

21   jurisdiction over substantial constitutional claims or questions of law, even in cases involving

22   orders of removal otherwise removed from our consideration by the ‘jurisdiction stripping’


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1   provisions of INA § 242(a)(2).”)

2          It is clear, however, that the absence of a valid final order means that we do not have

3   jurisdiction to reach Petitioner’s challenge to the BIA’s determination that his larceny conviction

4   constituted an aggravated felony under the INA.

5          We therefore GRANT in part and DISMISS in part Rhodes’s petition for review,

6   VACATE the BIA’s removal order, and REMAND to the BIA for further proceedings consistent

7   with this decision.




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