Leppind v. Mukasey , 530 F.3d 862 ( 2008 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    OLIVER LEPPIND,                            
    Petitioner,          No. 04-75903
    v.
           Agency No.
    A79-406-882
    MICHAEL B. MUKASEY, Attorney
    General,                                            ORDER
    Respondent.
    
    Filed June 20, 2008
    Before: Kim McLane Wardlaw and Sandra S. Ikuta,
    Circuit Judges, and Jeremy D. Fogel,* District Judge.
    Order;
    Dissent by Judge Ikuta
    COUNSEL
    David Landry, San Diego, California, for the petitioner.
    Peter D. Keisler, Assistant Attorney General, Civil Division,
    Leslie McKay, Senior Litigation Counsel, Terri J. Scadron,
    Assistant Director, Arthur L. Rabin, Attorney, Office of
    Immigration Litigation, Civil Division, U.S. Department of
    Justice, Washington, D.C., for the respondent.
    *The Honorable Jeremy D. Fogel, United States District Judge for the
    Northern District of California, sitting by designation.
    7111
    7112                      LEPPIND v. MUKASEY
    ORDER
    This case is referred to the Ninth Circuit Mediation Office
    to explore a possible resolution through mediation. Because a
    majority of the panel has concluded that an intervening case,
    Bona v. Gonzales, 
    425 F.3d 663
     (9th Cir. 2005), is relevant
    to the determination of the petition, but would remand for the
    Board of Immigration Appeals (BIA) to have the opportunity,
    which it previously did not, to apply the principles of Bona to
    the facts presented in this petition in the first instance, the
    majority accedes to the government’s preference for media-
    tion over remand.1 Given the parties’ agreement to alternative
    dispute resolution, “the strong judicial policy that favors set-
    tlements of disputes,” Guerrero v. RJM Acquisitions LLC,
    
    499 F.3d 926
    , 939 (9th Cir. 2007) (internal quotation marks
    omitted), and that the Ninth Circuit Mediation Office has
    proven remarkably effective in resolving, to the satisfaction of
    both petitioners and the government, issues arising in immi-
    gration petitions, this mediation referral order meaningfully
    serves the goals of judicial economy and fairness. To fully
    decide the question of Bona’s applicability, as our dissenting
    colleague would desire, would be to substitute ourselves for
    the BIA as the decisionmaking body. See INS v. Ventura, 
    537 U.S. 12
    , 16-17 (2002).
    Submission of this matter is therefore vacated until 60 days
    from the date of this order. Vacatur may be extended by fur-
    ther order of this panel or the Chief Circuit Mediator.
    IT IS SO ORDERED.
    1
    During oral argument, counsel for the government stated that “should
    the court find that Bona is . . . somehow pertinent to the petitioner’s case,
    then at that point, we would submit that mediation may be appropriate.”
    We applaud government counsel for its willingness to resolve this matter
    through mediation, eliminating the unnecessary expenditure of further
    judicial and administrative resources.
    LEPPIND v. MUKASEY                         7113
    IKUTA, Circuit Judge, dissenting:
    At oral argument, the government agreed to mediation only
    if the panel determined that Bona v. Gonzales, 
    425 F.3d 663
    (9th Cir. 2005), impacted this case. The panel now submits
    this case to mediation without explaining why Bona is rele-
    vant. Because in my view the change in the law affected by
    Bona has no impact on Leppind’s case, I dissent from the
    order referring this case to mediation.
    I
    In Bona, an arriving alien in a removal proceeding
    attempted to file a new application for adjustment of status
    with the immigration judge (IJ).1 (The application filed by the
    petitioner before she was put in removal proceedings had
    been denied.) The IJ held that 
    8 C.F.R. § 245.1
    (c)(8) pre-
    cluded him from considering the petitioner’s application. That
    regulation stated, in pertinent part:
    (c) Ineligible aliens. The following categories of
    aliens are ineligible to apply for adjustment of status
    to that of a lawful permanent resident alien under
    section 245 of the Act:
    ...
    (8) Any arriving alien who is in removal
    proceedings . . . .
    
    8 C.F.R. § 245.1
     (2005). The petitioner challenged this regu-
    lation as conflicting with 
    8 U.S.C. § 1255
    (a), which provides
    that “[t]he status of an alien who was inspected and admitted
    or paroled into the United States . . . may be adjusted by the
    1
    
    8 C.F.R. § 1.1
    (q) defines “arriving alien” as “an applicant for admis-
    sion coming or attempting to come into the United States at a port-of-entry
    . . . .”
    7114                     LEPPIND v. MUKASEY
    Attorney General, in his discretion and under such regulations
    as he may prescribe . . . .” We agreed. Noting that 
    8 C.F.R. § 245.1
     precluded the class of arriving aliens from applying
    for adjustment of status in any form, including by a direct
    application to a U.S. Citizenship and Immigration Services
    (USCIS) district director, we held:
    [I]t is this aspect of section 245.1(c)(8) which proves
    fatal. By entirely excluding a category of aliens from
    the ability to apply for adjustment, who by statute
    are eligible to apply for such relief, the regulation
    goes beyond simply regulating the manner in which
    such applications shall be made or the discretionary
    decision to grant such relief. Rather, the regulation
    strips statutory eligibility for such relief in any form
    from this entire category of aliens once they are
    placed in removal proceedings.
    Bona, 425 F.3d at 670. In light of this fatal flaw, we struck
    down § 245.1 as conflicting with 
    8 U.S.C. § 1255
    (a).2
    Because the petitioner had been precluded from filing an
    application for adjustment of status, we granted her petition
    for review and remanded her case to the BIA for further pro-
    ceedings. 
    Id. at 670-71
    .
    II
    Bona has no applicability here, because Leppind was not
    deprived of the ability to file an application for adjustment of
    status. While in the United States on an expired visa, Leppind
    married a U.S. citizen and then filed an adjustment of status
    application with the USCIS. While this application was pend-
    ing, Leppind traveled to Mexico, but was stopped at the bor-
    2
    Subsequently, the Attorney General amended the regulation. See Eligi-
    bility of Arriving Aliens in Removal Proceedings to Apply for Adjustment
    of Status and Jurisdiction to Adjudicate Applications for Adjustment of
    Status, 
    71 Fed. Reg. 27,585
    , 27,586 (May 12, 2006).
    LEPPIND v. MUKASEY                   7115
    der when he attempted to reenter the United States. On his
    third attempt to reenter the United States, Leppind approached
    a border patrol agent and stated “citizen.” Leppind was subse-
    quently put into removal proceedings.
    Unlike the alien in Bona, Leppind’s adjustment of status
    application was pending throughout Leppind’s removal and
    asylum proceedings. The IJ granted three continuances of
    Leppind’s removal hearing in part to allow the Service further
    time to adjudicate the adjustment of status application. After
    13 months, with the government continuing to delay in pro-
    cessing Leppind’s application, the IJ finally decided to pro-
    ceed with the removal and asylum hearing, ultimately
    concluding that Leppind was removable and not entitled to
    relief.
    The IJ did not have the benefit of Bona in deciding Lep-
    pind’s case; that decision was issued while Leppind’s petition
    for review was pending before us. However, even if Bona had
    been decided before the IJ ruled, there is no basis for conclud-
    ing that Bona’s invalidation of § 245.1 would have affected
    the IJ’s decision. First, and most obviously, Bona invalidated
    a regulation that precluded an arriving alien in a removal pro-
    ceeding from applying for adjustment of status. However,
    Leppind was not precluded from applying for adjustment of
    status; rather, Leppind’s adjustment of status application was
    pending before, during and after his hearing before the IJ. On
    the facts of this case, Leppind simply is not among the group
    of arriving aliens in removal proceedings who found them-
    selves stripped of “statutory eligibility for such relief in any
    form.” Bona, 425 F.3d at 670. Moreover, there is no hint in
    the record that Leppind’s adjustment of status application was
    affected by the existence of the invalidated regulation. Rather,
    the Service indicated that its disinclination to grant Leppind
    adjustment of status was based on its conclusion that Leppind
    had made a false claim of citizenship.
    Nor do the IJ’s statements that he lacked jurisdiction over
    Leppind’s pending application require a different conclusion.
    7116                 LEPPIND v. MUKASEY
    Had Leppind been placed in removal proceedings after Bona
    invalidated § 245.1, the IJ would still lack jurisdiction over
    his adjustment application. See 
    8 C.F.R. § 245.2
    (a)(1) (2007)
    (providing that USCIS, not the IJ, has jurisdiction to adjudi-
    cate an application for adjustment of status filed by an alien,
    except for situations not applicable here); see also Brito v.
    Mukasey, 
    521 F.3d 160
     (2d Cir. 2008). Nothing in Bona sug-
    gests that requiring an alien to file an adjustment of status
    application with the district director rather than with the
    immigration judge is problematic or conflicts with a statute.
    See 425 F.3d at 670.
    The evil remedied by Bona was the deprivation of any ave-
    nue for review of an application for adjustment of status.
    Because Leppind had filed his application before being placed
    in removal proceedings, he was not subject to that evil and
    thus is not entitled to any relief flowing from our decision in
    Bona. Presumably, the reason Leppind failed to raise any
    argument under Bona until requested to do so by the majority
    is because Bona is inapplicable to Leppind’s case.
    Turning to the two issues actually raised by Leppind in his
    opening brief, namely whether the IJ and BIA erred in deny-
    ing him asylum and withholding of removal relief, I would
    deny the petition. Substantial evidence supports the agency’s
    determination that Leppind has failed to establish eligibility
    for asylum and withholding of removal. See Singh v. Gon-
    zales, 
    491 F.3d 1019
    , 1023 (9th Cir. 2007).
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