Andrzej Porwisz v. Attorney General United States , 625 F. App'x 49 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4281
___________
ANDRZEJ PORWISZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-441-504)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 19, 2015
Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.
(Opinion filed: August 31, 2015)
________________
OPINION
_______________

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
1
SLOVITER, Circuit Judge.
Petitioner Andrzej Porwisz (“Petitioner”) admittedly overstayed his nonimmigrant
visa, and in September of 2010, the Department of Homeland Security (“DHS”) initiated
removal proceedings against him. An Immigration Judge (“IJ”) ultimately granted
Petitioner’s request for voluntary departure and alternatively ordered his removal if he
did not comply with the terms of the grant of voluntary departure. Petitioner appealed the
voluntary departure order. The Board of Immigration Appeals (“BIA”) dismissed his
appeal, and he petitioned for review by this court. Petitioner contends that the BIA erred
in failing to address his arguments regarding section 212(a)(9)(B) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(a)(9)(B)(i)(II), which provides, in pertinent
part, that “[a]ny alien . . . who . . . has been unlawfully present in the United States for
one year or more, and who again seeks admission within 10 years of the date of such
alien’s departure or removal from the United States, is inadmissible.” Petitioner argues
that that he is not subject to this provision and that the DHS’s interpretation of this
provision as barring his readmission for 10 years is incorrect. We conclude that
Porwisz’s petition for review is moot and is not ripe for review, and we will dismiss the
petition for review.1
I.
Petitioner is a native of Poland who entered the United States on approximately
August 24, 2002, on a nonimmigrant visitor visa, which authorized him to remain in the
1
The BIA had jurisdiction over Petitioner’s appeal pursuant to 8 C.F.R. §§ 1003.1(b)(3)
and 1240.15.
2
United States for a temporary period of time not to extend beyond February 23, 2003.
Petitioner did not depart in February 2003.
On October 11, 2007, Edison Machine LLP filed an application for a permanent
employment certification on Petitioner’s behalf, and the U.S. Department of Labor
approved this application on December 3, 2007. On approximately April 29, 2008,
Edison Machine LLP also filed an I-140 immigrant petition for an alien worker, which
was approved on December 11, 2008.
In January, 2010, Petitioner filed an I-485 application for adjustment of status
pursuant to section 245(i) of the INA, 8 U.S.C. § 1255(i), with the DHS. The DHS
denied this application because his documents in support of that application did not
demonstrate “that [he] maintained lawful nonimmigrant status beginning on February 23,
2003 and ending on January 6, 2010.” A.R. at 112-13. Thereafter, on September 10,
2010, the DHS commenced removal proceedings against Petitioner pursuant to section
237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B).
Petitioner, with the representation of an attorney, appeared before an IJ three times
between November 30, 2010, and February 14, 2013. During these hearings, Petitioner
conceded removability and sought voluntary departure. However, Petitioner also
renewed his application for adjustment of status despite his recognition that he was not
eligible for such adjustment. Petitioner openly admitted that the purpose of this
application was to create an appealable issue so that he could challenge at the appellate
level the DHS’s interpretation of the “unlawful presence” bar in
3
8 U.S.C. § 1182(a)(9)(B)(i)(II) as applying to those departing pursuant to voluntary
departure orders.2 Petitioner did not request the IJ to address his arguments regarding the
inapplicability of § 1182(a)(9)(B)(i)(II) to voluntary departure orders in the first instance.
During the final hearing on February 14, 2013, the IJ issued an oral ruling granting the
application for voluntary departure, giving Petitioner until April 15, 2013 to depart and
imposing an alternative removal order to Poland (in the event that Petitioner did not
comply with the voluntary departure order). The IJ did not address the adjustment of
status issue any further, aside from marking that application as “withdrawn” on the order
sheet. The IJ noted that Petitioner reserved an appeal.
On March 7, 2013, Petitioner filed his appeal to the BIA. In his appeal, Petitioner
did not address the adjustment of status issue and instead challenged DHS’s interpretation
of the “unlawful presence” bar of § 1182(a)(9)(B)(i)(II). The BIA dismissed the appeal
on October 6, 2014. The BIA reasoned that while the IJ “did not fully address
[Petitioner’s] renewed application for adjustment,” the BIA had “no reason to reverse
[the IJ’s] decision or remand for further proceedings, since [Petitioner] does not appear to
challenge the DHS’ denial of his application for adjustment on appeal.” A.R. at 3. As to
Petitioner’s arguments concerning § 1182(a)(9)(B)(i)(II), the BIA stated that it “need not
address [these] arguments concerning admissibility with respect to any future application
for re-admission, as the issue is not properly before us.” Id. However, the BIA noted
2
Petitioner sought review of an issue relating to voluntary departure, but voluntary
departure orders are not appealable. Thus, to pursue his appeal, Petitioner sought to use
the denial of his adjustment of status application as a vehicle for appealing the voluntary
departure readmission issue.
4
that it had previously stated in Matter of Arrabally, 25 I & N Dec. 771, 774 (BIA 2012),
that the inadmissibility provisions of § 1182(a)(9)(B)(i)(II) applied to aliens who depart
under a grant of voluntary departure. For these reasons, the BIA dismissed the appeal.
Petitioner filed a timely petition for review.
II.
We must consider whether we can address Petitioner’s arguments regarding 8
U.S.C. § 1182(a)(9)(B)(i)(II) despite his failure to leave the United States in compliance
with his voluntary departure order. The BIA warned Petitioner that pursuant to 8 C.F.R.
§ 1240.26(i), a grant of voluntary departure terminates upon an alien’s filing of a petition
for review before departing the United States.3 The United States Attorney General
(“Respondent”), argues that the issues raised in the instant petition for review, which
consider the effects of a voluntary departure order, are moot because Petitioner’s filing of
a petition for review while remaining in the United States terminated his voluntary
departure order. Respondent states, “because Petitioner no longer has the option of
3
8 C.F.R. § 1240.26(i) provides:
Effect of filing a petition for review. If, prior to departing the United States,
the alien files a petition for review pursuant to section 242 of the Act (8
U.S.C. 1252) or any other judicial challenge to the administratively final
order, any grant of voluntary departure shall terminate automatically upon
the filing of the petition or other judicial challenge and the alternate order
of removal entered pursuant to paragraph (d) of this section shall
immediately take effect, except that an alien granted the privilege of
voluntary departure under 8 C.F.R. 1240.26(c) will not be deemed to have
departed under an order of removal if the alien departs the United States no
later than 30 days following the filing of a petition for review, provides to
DHS such evidence of his or her departure as the ICE Field Office Director
may require, and provides evidence DHS deems sufficient that he or she
remains outside of the United States. . . .
5
leaving the United States in accordance with the terms of his voluntary departure order,
he has no personal stake in this Court’s resolution of th[is] issue.” Respondent’s Br. at
12-13. Respondent further contends that the BIA properly declined to consider the issue
raised in the petition regarding the applicability of § 1182(a)(9)(B)(i)(II) because the
issue was not properly before it and the BIA’s policy is to avoid issuing advisory
opinions. See BIA Practice Manual § 1.4(d)(iii), available at
http://www.justice.gov/eoir/board-immigration-appeals-2.
Petitioner responds that the BIA should not have declined to address his arguments
based on his failure to leave the country and apply for readmission because, had he done
so, the issue would not have been reviewable as a result of 8 C.F.R. § 1003.4 and the
doctrine of consular nonreviewability. See Kleindienst v. Mandel, 408 U.S. 753, 769-70
(1972) (stating that where Congress has delegated the exercise of its power to make rules
for the exclusion of aliens to the Executive, and “the Executive exercises this power
negatively on the basis of a facially legitimate and bona fide reason, the courts will [not]
look behind the exercise of that discretion”). Pursuant to 8 C.F.R. § 1003.4:
Departure from the United States of a person who is the subject of
deportation or removal proceedings . . . subsequent to the taking of an
appeal, but prior to a decision thereon, shall constitute a withdrawal of the
appeal, and the initial decision in the case shall be final to the same extent
as though no appeal had been taken.
Thus, if Petitioner left the United States in compliance with his voluntary departure order,
his appeal would be deemed withdrawn. Petitioner argues that we should consider his
petition for review despite the fact that his petition appears to be moot and not ripe for
review, based on the procedural difficulties described above.
6
If the issues in a case “have become moot, i.e., are no longer ‘live,’ the case will
be moot and therefore nonjusticiable.” Pennsylvania v. Lockheed Martin Corp., 681 F.3d
503, 506 (3d Cir. 2012). The case or controversy requirement of Article III of the
Constitution requires “‘(1) a legal controversy that is real and not hypothetical, (2) a legal
controversy that affects an individual in a concrete manner so as to provide the factual
predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently
adverse parties so as to sharpen the issues for judicial resolution.’” Id. at 506-07 (quoting
In re Surrick, 338 F.3d 224, 229 (3d Cir. 2003)).
The Supreme Court has instructed that the “basic rationale [of the ripeness
doctrine] is to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967). We must consider the “fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.” Id. at 149. A court making a
“fitness for review” determination must “consider[] whether the issues presented are
purely legal, and the degree to which the challenged action is final. A court must
consider whether the claims involve uncertain and contingent events that may not occur
as anticipated or may not occur at all.” Comite’ De Apoyo A Los Trabajadores Agricolas
v. Perez, 774 F.3d 173, 183 (3d Cir. 2014).
We agree with Respondent that, because of the operation of 8 C.F.R. § 1240.26(i),
the issue of whether § 1182(a)(9)(B)(i)(II) applies to voluntary departure orders is moot
as to Petitioner. We also agree with the BIA’s determination that this issue was not
properly before it. The Petitioner did not voluntarily depart and apply for readmission, so
7
therefore, the issue is not ripe for us to consider whether the ten-year bar for readmission
under § 1182(a)(9)(B)(i)(II) applies to aliens that voluntarily depart from the United
States. Accordingly, we must dismiss Petitioner’s petition for review.4
III.
For these foregoing reasons, we will dismiss the petition for review.
4
We fully understand the procedural difficulties that an alien that voluntarily departs and
wishes to challenge the applicability of 8 U.S.C. § 1182(a)(9)(B)(i)(II) will face, but in
order for this court to exercise jurisdiction there must be a live controversy that is ripe for
review. No such controversy is present in this case.
8