Juras v. Garland ( 2021 )

19-3001 (L)
Juras v. Garland
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
Nos. 19-3001 (L), 20-248 (Con)
BARTLOMIEJ JURAS,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
A056-062-135.
ARGUED: SEPTEMBER 21, 2021
DECIDED: DECEMBER 17, 2021
Before: LIVINGSTON, Chief Judge, CALABRESI, and NARDINI, Circuit
Judges.
Petitioner Bartlomiej Juras seeks review of decisions of the
Board of Immigration Appeals affirming the decision of an
Immigration Judge to allow Juras to withdraw his application for
admission to the United States, denying Juras’s motion to reopen, and
affirming the Immigration Judge’s finding that Juras was
inadmissible. We hold that we lack jurisdiction to review both the
agency’s decision to allow Juras to withdraw his application and to
deny Juras’s motion to reopen, and accordingly DISMISS the petitions
insofar as they challenge those decisions. However, because our
jurisdiction to review the Immigration Judge’s inadmissibility finding
depends on whether that finding survives the withdrawal of Juras’s
application for admission and therefore qualifies as a “final order of
removal,” and because this appears to be a question of first
impression in this Circuit that also has not been resolved by the
agency, we GRANT the petition for review in 19-3001 in part and
REMAND the case to the Board of Immigration Appeals to clarify
what, if any, preclusive effect the Immigration Judge’s inadmissibility
finding, affirmed by the Board, would be given in subsequent
immigration proceedings.
MICHAEL P. DIRAIMONDO (Marialaina L.
Masi, Stacy A. Huber, on the brief),
DiRaimondo & Masi, PC, Bohemia, NY, for
Petitioner.
JOHN BEADLE HOLT (Ethan P. Davis, Keith I.
McManus, Rachel L. Browning, on the brief),
Office of Immigration Litigation, United
States Department of Justice, Washington,
D.C., for Respondent.
2
TIMOTHY W. HOOVER, Hoover & Durland
LLP, Buffalo, NY, as Amicus Curiae.
WILLIAM J. NARDINI, Circuit Judge:
Congress has sorted decisions in immigration proceedings into
two categories: those that are subject to judicial review, and those that
are not. The line between the two categories is often clear, but not
always. This case illustrates the point.
Bartlomiej Juras, a Polish citizen, was a lawful permanent
resident (“LPR”) of the United States—in common parlance, he had a
“green card.” But he moved back to Poland for a number of years to
care for his ailing grandfather. When Juras returned, an Immigration
Judge (“IJ”) determined that he had stayed overseas too long: he had
effectively abandoned his LPR status and was now inadmissible to
the United States. The IJ let Juras withdraw his application for
admission; this is an act of administrative discretion that generally
benefits an alien, who thereby avoids being “removed,” which would
3
make it more difficult for him to seek certain immigration benefits in
the future. But withdrawal might have a downside, because it could
mean that Juras would be definitively required to re-start the
immigration process from square one. Juras turned to the Board of
Immigration Appeals (“BIA”), where he hedged his bets. At first, he
argued that the IJ erred by finding him inadmissible but, if the BIA
disagreed, that he still wanted to withdraw his application for
admission. Rebuffed by the BIA on admissibility but allowed to
withdraw, Juras moved to reopen his proceedings. Backtracking on
his earlier position, he now sought to withdraw the withdrawal of his
application. But the BIA denied that request, too.
Juras has now filed two petitions in our Court which, together,
seek review of three agency rulings: (1) the IJ’s decision (affirmed by
the BIA) to allow withdrawal of Juras’s application for admission; (2)
the BIA’s denial of Juras’s motion to reopen, in which he tried to take
back his withdrawal; and (3) the IJ’s apparent determination
4
(seemingly affirmed by the BIA) that Juras had abandoned his LPR
status and was inadmissible. We easily conclude that we lack
jurisdiction to review the first two rulings, which are committed to
agency discretion by statute. On those two points, therefore, we
dismiss Juras’s petitions.
The third issue is thornier. We have jurisdiction over Juras’s
petition only if it seeks review of a “final order of removal” under the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(1). An
order of removal, in turn, includes an “order . . . concluding that the
alien is deportable” under 8 U.S.C. § 1101(a)(47)(A). And so whether
we have jurisdiction to review any part of the IJ’s decision would
seem to depend in turn on whether there was in fact or could be any
decision on an application that was withdrawn—in other words,
whether there is or ever was an order “concluding that” Juras is
removable. That is a question on which neither we nor the BIA have
yet spoken in a precedential opinion.
5
While we are grateful for the arguments Amicus has made, we
have determined that it is most prudent in these circumstances to
remand the matter to the BIA for the limited purpose of providing its
view of the status of the IJ’s finding of inadmissibility (affirmed by
the BIA) made in connection with Juras’s withdrawn application—
that is, whether the agency would be obliged to give it binding effect
in future administrative immigration proceedings or whether that
finding is nothing more than dicta for future agency officials to follow
(or not) only as they might deem it persuasive. The agency’s view on
the nature of its inadmissibility finding will then inform our analysis
of whether Congress has given us jurisdiction to review the substance
of the inadmissibility finding.
I. BACKGROUND
A. The Proceedings Before the Immigration Judge
Ordinarily, an immigrant seeking admission to the United
States must present a valid, unexpired immigrant visa and a valid,
unexpired passport or other travel document. 8 U.S.C. § 1181(a).
6
Someone who qualifies as a “returning resident”—including an LPR
returning from a “temporary visit abroad”—need not meet these
requirements. 8 U.S.C. §§ 1101(a)(27)(A), 1181(b). But this exemption
applies only if a returning LPR’s visit abroad was indeed
“temporary.” If not, he is treated like others seeking entry to the
United States and so is inadmissible pursuant to 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), absent valid entry documents.
In 2003, Juras, a Polish citizen, was admitted to the United
States as an LPR. In 2007, Juras returned to Poland and stayed there
for a long period of time. In 2013, after living in Poland for six years,
Juras attempted to reenter the United States from Canada over the
Rainbow Bridge in Niagara Falls, New York. Juras was charged as
inadmissible as an arriving alien without valid entry documents,
paroled into the United States for a year, and placed in removal
proceedings. Juras was represented by counsel during these
proceedings and challenged the government’s claim that he had
7
abandoned his LPR status by remaining outside of the United States
for an extended period.
The removal proceedings against Juras culminated in a hearing
before an IJ in 2018, at which Juras testified as follows: After becoming
an LPR in 2003, Juras traveled between Poland and the United States
several times between 2003 and 2007, staying in Poland for three to
eight months at a time. In 2007, Juras traveled to Poland and
remained there for six years. During that time, Juras took care of his
grandfather, who suffered from Alzheimer’s disease and dementia,
and managed his grandfather’s farm. Juras initially planned to return
to the United States by Christmas of 2010, thinking that his
grandfather’s condition would improve by then. The grandfather
remained in poor health, however, so Juras stayed in Poland until
2013, when his father was able to retire and take over Juras’s
grandfather’s care. When asked what steps Juras took between 2007
to 2013 to return to the United States, Juras answered that he stayed
8
in contact with a friend who owned a company in the United States
for which Juras was working at the time of the hearing. He further
testified that he did not own property in Poland and did not work
while in Poland, but that he did have Polish bank accounts which he
closed when he returned to the United States in 2013. Juras admitted
that he did not file taxes or rent an apartment in the United States
before 2013. He further admitted that he never asked United States
Citizenship and Immigration Services for permission to remain
outside the United States for an extended period. Ultimately, Juras
testified that he did not believe that he had abandoned his permanent
resident status because he always intended to return to the United
States and build a life but had no choice but to remain in Poland.
Juras’s sister, Michaelina Babuska, also testified at the hearing.
She corroborated Juras’s testimony concerning the need for Juras to
stay in Poland to care for their sick grandfather, but testified that Juras
9
and his family members were all aware that Juras’s staying in Poland
placed his LPR status in jeopardy.
In its closing argument, the government argued that Juras had
abandoned his LPR status but noted that it would not object if the IJ
let Juras withdraw his application for admission. Under 8 U.S.C.
§ 1225(a)(4) and 8 C.F.R. § 1240.1(d), an IJ may permit an arriving alien
in removal proceedings to withdraw his application for admission if
the IJ is satisfied that the alien has the intent and the means to
immediately depart the United States, and if permitting withdrawal
would be in the interests of justice. There can be real advantages for
an alien to withdraw an application in such a situation. An alien
allowed to withdraw his application and leave the country is not
considered ”removed,” and therefore avoids the restrictions found in
8 U.S.C. § 1182(a)(9)(A)(i), which provides that an alien who has been
removed is, with some exceptions, inadmissible for five years after
the date of his removal. Juras’s counsel argued in closing that Juras
10
had not abandoned his LPR status but did not address the possibility
of withdrawal.
At the end of the hearing, the IJ found that Juras had
abandoned his LPR status by staying in Poland between 2007 and
2013. Because Juras did not qualify as an LPR returning from a
temporary visit abroad, the IJ found that Juras was inadmissible
under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an arriving alien seeking
admission to the United States without a visa and a travel document.
Observing that “[a]n order of removal can carry with it certain harsh
consequences,” the IJ next considered whether to allow Juras to
withdraw his application for admission under 8 U.S.C. § 1225(a)(4)
and 8 C.F.R. § 1240.1(d). Certified Administrative Record 1 (“CAR”)
126. Noting the government’s non-opposition, the IJ stated that she
would “allow the respondent to withdraw [h]is application for
admission rather than enter an order of removal against him.” Id.1References to the Certified Administrative Record refer to the record in Juras’s
petition for review of the BIA’s denial of his motion to reopen, No. 20-248.
11
Juras’s lawyer did not object to or otherwise address the IJ’s decision
to allow Juras to withdraw his application.
B. Juras’s Appeal to the BIA
Through counsel, Juras appealed to the BIA. Juras argued that
the IJ erred in finding that Juras had abandoned his LPR status.
However, Juras also argued that, in the event the BIA agreed that he
had abandoned his LPR status, he “continue[d] to request withdrawal
of his application for admission” to the United States. CAR 55.
On August 20, 2019, the BIA dismissed Juras’s appeal. The BIA
upheld the IJ’s finding that Juras had abandoned his LPR status and
was thus inadmissible for lack of valid entry documents. The BIA also
“note[d] DHS’[s] non-opposition and affirm[ed] the Immigration
Judge’s decision to allow the respondent to withdraw his application
for admission.” CAR 44. Thereafter, Juras found new counsel and
timely petitioned for our review of the BIA’s August 20, 2019,
decision.
12
C. Juras’s Motion to Reopen
Juras filed a timely motion to reopen the proceedings before the
BIA. In an affidavit accompanying his motion to reopen, Juras stated
that he had not understood that, by withdrawing his application for
admission, he was accepting that he had abandoned his green card
and that he would be required to return to Poland immediately. Juras
explained that he “d[id] not wish to withdraw [his] application for
admission, and ask[ed] that [his] prior attorney’s request to withdraw
[his] application for admission be withdrawn.” CAR 39.
On December 23, 2019, the BIA denied Juras’s motion to
reopen. The BIA discredited Juras’s statement that he did not
understand the legal consequences of withdrawing his application for
admission because Juras was represented by counsel before the IJ and
on appeal, where he asked the BIA to affirm the IJ’s decision to allow
withdrawal. The BIA noted that Juras had not argued that his prior
counsel had been ineffective, and that absent “egregious
circumstances,” an attorney’s statements and actions are binding
13
upon his client. CAR 3. The BIA found that Juras had not shown
egregious circumstances and denied his motion to reopen. Juras
timely petitioned for review of the BIA’s denial of his motion to
reopen.
Juras’s two petitions were consolidated for our review. On
April 28, 2021, after receiving briefing on the merits, we ordered
supplemental briefing to address whether the Court has jurisdiction
over Juras’s petitions under 8 U.S.C. § 1252(a). After both Juras and
the government argued that we have jurisdiction, we appointed
Timothy W. Hoover as amicus curiae to brief and to argue that the
Court does not have jurisdiction. Amicus has ably discharged his
assigned responsibilities, and the Court thanks him for his efforts.
II. DISCUSSION
A. Judicial Review Under the INA
Section 1252 of Title 8 of the United States Code governs
judicial review of orders of removal. The statute restricts our
14
jurisdiction to entertain petitions for review of agency orders in
immigration cases in several ways.
First, we have “jurisdiction to review only petitions for review
of final orders of removal.” Alibasic v. Mukasey, 547 F.3d 78, 82 (2d Cir.
2008) (internal quotation marks omitted); see also 8 U.S.C. § 1252(d).
The INA in turn defines an order of removal as “the order of the
special inquiry officer . . . concluding that [an] alien is deportable or
ordering deportation,” 8 U.S.C. § 1101(a)(47)(A), 2 and provides that
such orders become final “upon the earlier of (i) a determination by
the Board of Immigration Appeals affirming such order; or (ii) the
expiration of the period in which the alien is permitted to seek review
of such order by the Board of Immigration Appeals,” 8 U.S.C.
2 Although the statute refers to an “order of deportation,” that term is used
interchangeably in the INA with “order of removal.” Thapa v. Gonzales, 460 F.3d
323, 333 n.3 (2d Cir. 2006) (noting that Congress amended the INA to replace the
previous distinction between deportation and exclusion with the inclusive term
“removal” and construing the reference to orders of deportation in 8 U.S.C.
§ 1101(a)(47)(A) to apply to orders of removal.)
15
§ 1101(a)(47)(B). “A ‘special inquiry officer’ is an IJ . . . .” Rhodes-
Bradford v. Keisler, 507 F.3d 77, 79 (2d Cir. 2007) (citing 8 C.F.R. § 3.0).
In addition to restricting judicial review to final orders of
removal, § 1252 carves out certain categories of agency decisions over
which we lack jurisdiction. See 8 U.S.C. § 1252(a)(2). As relevant here,
§ 1252(a)(2)(B) deprives us of jurisdiction to review decisions
committed by statute to the discretion of the Attorney General. 8
U.S.C. § 1252(a)(2)(B) (“[N]o court shall have jurisdiction to review . . .
any . . . decision or action of the Attorney General . . . the authority for
which is specified under this subchapter to be in the discretion of the
Attorney General . . . .”). Section 1252(a)(2)(B) applies only to
determinations made discretionary by statute. Kucana v. Holder, 558
U.S. 233, 237 (2010) (“We hold that the key words ‘specified under this
subchapter’ refer to statutory, but not to regulatory, specifications.”).
And the “subchapter” in question is Subchapter II of Chapter 12 of
16
Title 8 of the United States Code. Subchapter II is a lengthy one,
currently encompassing Sections 1151 through 1382 of Title 8.
Finally, although under § 1252(a)(2) we generally lack
jurisdiction to review, inter alia, discretionary decisions by the
Attorney General, a Court of Appeals nonetheless retains jurisdiction
in a petition for review filed pursuant to § 1252 to review any
“constitutional claims or questions of law” raised by such decisions.
8 U.S.C. § 1252(a)(2)(D); see also Rosario v. Holder, 627 F.3d 58, 61 (2d
Cir. 2010).
B. Our Jurisdiction over Juras’s Claims
With these general principles in mind, we evaluate whether we
have jurisdiction over the claims raised by Juras in his petitions for
review. Juras challenges (1) the IJ’s 3 decision (affirmed by the BIA) to
allow him to withdraw his application for admission to the United
3“Ordinarily we review the BIA’s decision, not the decision of the IJ . . . .” Secaida-
Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). However, where, as here, the BIA
summarily affirms and adopts an IJ’s decision, we review the decision of the IJ.
See id.17
States; (2) the BIA’s denial of his motion to reopen the proceedings;
and (3) the IJ’s putative finding (affirmed by the BIA) that he was not
admissible as a “returning resident” and lacked the necessary entry
documents. We consider our jurisdiction over each of these claims in
turn.
1. Our Jurisdiction to Review the Withdrawal Decision
We first hold that we lack jurisdiction to review an IJ’s decision
to allow a petitioner to withdraw his application for admission to the
United States. This conclusion follows from a straightforward
application of 8 U.S.C. § 1252(a)(2)(B) which, as noted above, deprives
courts of jurisdiction to review decisions committed by statute to the
discretion of the Attorney General under Subchapter II. The decision
to allow withdrawal of an application for admission is precisely such
a decision: 8 U.S.C. § 1225(a)(4) provides that “[a]n alien applying for
admission may, in the discretion of the Attorney General and at any time,
be permitted to withdraw the application for admission and depart
immediately from the United States.” (emphasis added). Although
18
the Attorney General has delegated the exercise of this discretion by
regulation to, inter alia, IJs, see 8 C.F.R. § 1240.1(d), the decision still
falls squarely within boundaries of § 1252(a)(2)(B).
We therefore lack jurisdiction over Juras’s petition for review
of the IJ’s withdrawal decision except insofar as Juras raises a
constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(B),
(D). Juras makes no claim under the United States Constitution, so
we ask only whether his arguments raise a question of law. In doing
so, we “determine our jurisdiction by looking at the underlying
nature of the [agency’s] determination rather than any gloss offered
by the parties” and ask “whether the [agency] is expressing legal
doctrine or whether it is engaged in the factfinding and factor-
balancing that are at the core of its discretion.” Rosario, 627 F.3d at 62(emphasis omitted); see also Nouritajer v. Jaddou, 18 F.4th 85, 89 (2d Cir.
2021) (rejecting plaintiff’s attempt to cast challenges as procedural
19
rather than substantive to avoid operation of § 1252(a)(2)(B)’s
jurisdictional bar).
Juras argues that the IJ erred by failing to explain to Juras the
legal consequences of the withdrawal of his application, failing to
order Juras to leave the United States by a certain date, and failing to
ask Juras certain questions before granting withdrawal. Specifically,
Juras faults the IJ for failing to “ask[] the Petitioner if he had a valid
passport or if he had the funds to purchase a ticket to leave the U.S.”
and for failing to “specifically ask the Petitioner, under oath, ‘do you
have the intent to leave the U.S. if I allow you to withdraw your
application for admission.’” Pet. Br. 17. But compliance with the legal
standard governing the withdrawal of an application for admission
to the United States does not require an IJ to first explain the legal
consequences of withdrawal to an immigrant, let alone one
represented by counsel. Nor is there any requirement that an IJ ask
the specific questions Juras identifies. An IJ must simply be assured
20
that an arriving alien, “in addition to demonstrating that he or she
possesses both the intent and the means to depart immediately from
the United States, [has] establishe[d] that factors directly relating to
the issue of inadmissibility indicate that the granting of the
withdrawal would be in the interest of justice.” 8 C.F.R. § 1240.1; see
also In re Gutierrez, 19 I. & N. Dec. 562, 564–65 (B.I.A. 1988) (same).
Although the questions Juras claims the IJ should have asked would
perhaps help establish an arriving alien’s intent and means to depart
immediately from the United States, they are not required by law.
Juras’s arguments, then, boil down to “a quarrel about fact-finding,”
and we do not have jurisdiction to consider them. Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39 (2d Cir. 2008). Accordingly, we dismiss
Juras’s petition for review of the BIA’s August 20, 2019, decision
insofar as it challenges the agency’s decision to allow him to
withdraw his application because this decision is committed by
statute to the discretion of the Attorney General.
21
2. Our Jurisdiction to Review the Denial of Juras’s
Motion to Reopen
We next consider our jurisdiction to review the BIA’s denial of
Juras’s motion to reopen. We hold that § 1252(a)(2)(B) bars our review
of the denial of the motion to reopen because it is sufficiently
connected to the underlying order allowing withdrawal.
In Durant v. INS, we considered the effect of a different
jurisdictional bar found in 8 U.S.C. § 1252 on a motion to reopen
proceedings before the BIA. 393 F.3d 113, 115–16 (2d Cir. 2004). The
provision at issue in Durant—§ 1252(a)(2)(C)—bars judicial review of
final orders of removal against aliens whose convictions for certain
criminal offenses render them removable. The petitioner in Durant
was ordered removed because of his convictions for qualifying
criminal offenses, and the BIA later denied his motion to reopen the
proceedings. Durant, 393 F.3d at 114–15. The petitioner sought our
review of both his final order of removal and the denial of his motion
to reopen. Id. We held that we lacked jurisdiction over both petitions
22
because the “orders [were] sufficiently connected that permitting
review of a motion to reopen when § 1252(a)(2)(C) bars review of the
final order of removal would provide an improper backdoor method
of challenging a removal order.” Id. at 115. We reasoned that “[e]ven
though [we] may not consider the merits of the underlying removal
order when reviewing the denial of a motion to reopen, a holding . . .
that the BIA abused its discretion in denying a motion to reopen . . .
would have the effect of undermining the jurisdictional bar imposed
by 8 U.S.C. § 1252(a)(2)(C)” and would therefore “contravene
Congress’s intent” in limiting judicial review of certain orders in
immigration matters. Id. We reaffirmed and expanded this principle
in later cases. See Santos-Salazar v. U.S. Dep’t of Just., 400 F.3d 99, 103
(2d Cir. 2005) (holding that we lacked jurisdiction to review motions
to reconsider a denial of a motion to reopen where we lacked
jurisdiction to review the underlying order of removal); Sepulveda v.
Gonzales, 407 F.3d 59, 64 (2d Cir. 2005) (applying the “Santos-Salazar
23
principle” to hold that we had jurisdiction to review motions to
reopen and to reconsider where we were not barred by § 1252(a)(2)(B)
from reviewing the underlying final order of removal). See also
Nouritajer, 18 F.4th at 90 (“[S]ubject matter jurisdiction is lacking to
review the underlying discretionary . . . decision by USCIS, so
jurisdiction is similarly lacking to review . . . the denial of the motion
to reopen.”).
Applying the logic of Durant and the cases that followed it, the
denial of the motion to reopen and the order allowing the withdrawal
of Juras’s application for admission are “sufficiently connected” such
that our review of the former would undermine Congress’s decision
to bar our review of the latter. Sepulveda, 407 F.3d at 64. Because “we
cannot, on a petition for review of a motion to reopen, exercise
jurisdiction over that which we would not have had jurisdiction to
review on direct appeal,” Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir.
2008), we lack jurisdiction to review Juras’s motion to reopen. We
24
accordingly dismiss for lack of jurisdiction Juras’s petition for review
of the denial of his motion to reopen.
3. Our Jurisdiction to Review the BIA’s Inadmissibility
Finding
Finally, we consider our jurisdiction to review the IJ’s apparent
finding, seemingly affirmed by the BIA, that Juras was inadmissible
as lacking proper documents and not a “returning resident.” In doing
so, we must grapple with the following question: what is the status of
the IJ’s finding that Juras was inadmissible now that he has
withdrawn his application? As explained below, the parties and
Amicus offer different answers as to whether that inadmissibility
finding survives the withdrawal of Juras’s application, or whether
Juras would be entitled to a de novo adjudication of his abandonment
of his LPR status should he reapply for admission. The answer to this
question is critical to our jurisdiction to review the inadmissibility
finding. As stated above, we have jurisdiction to review only a “final
order of removal,” 8 U.S.C. § 1252(a)(1). So if, as Amicus and the
25
government argue, the withdrawal of Juras’s application rendered the
IJ’s inadmissibility finding a legal nullity, then it appears we must
dismiss his petition for review, either for lack of a final order of
removal or because the matter is moot. See Swaby v. Ashcroft, 357 F.3d
156, 160–61 (2d Cir. 2004); see also Hill v. Holder, 348 F. App’x 653, 655
(2d Cir. 2009).
We consider first the nature of an immigrant’s withdrawal of
an application for admission. Before Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), neither statute nor regulation expressly provided for such
a withdrawal. See Gutierrez, 19 I. &. N. Dec. at 564. However, “IJs and
immigration officers exercised their discretion to permit aliens to
withdraw their applications for admission based on case law and
internal practices.” United States v. Cisneros-Resendiz, 656 F.3d 1015,
1019 (9th Cir. 2011). In In re Gutierrez, the BIA clarified how IJs should
exercise this discretion, holding that an immigration judge “should
26
not allow withdrawal unless an alien, in addition to demonstrating
that he possesses both the intent and the means to depart immediately
from the United States, establishes that factors directly relating to the
issue of his admissibility indicate that granting withdrawal would be
in the interest of justice.” Gutierrez, 19 I. & N. Dec. at 564–65. The BIA
further held that “a balancing of the equities test is not an appropriate
method by which to determine whether an alien merits permission to
withdraw an application for admission,” and that “once the exclusion
hearing has been conducted and the issues of excludability have been
resolved, such permission should ordinarily only be granted with the
concurrence of the [government].” Id.
In enacting IIRIRA, Congress codified the procedure for
withdrawing an application. See 8 U.S.C. § 1225(a)(4). As noted
above, § 1225(a)(4) provides that “[a]n alien applying for admission
may, in the discretion of the Attorney General and at any time, be
permitted to withdraw the application for admission and depart
27
immediately from the United States.” Id. The Attorney General later
promulgated regulations delegating this discretion to IJs and
adopting the standard for allowing withdrawal articulated by the BIA
in Gutierrez. 8 C.F.R. § 1240.1(d). Also as noted above, under the INA,
an alien who is removed but seeks admission to the United States
within five years of the date of his removal is inadmissible unless he
first receives the Attorney General’s permission to reapply for
admission. 8 U.S.C. § 1182(a)(9)(A)(i)–(iii). “However, if permission
to withdraw an application for admission is granted to an applicant,
his departure is not pursuant to an order of [removal] and permission
to reapply for admission is not required.” Gutierrez, 19 I. & N. Dec. at
564.
Although the relevant statutes, regulations, and case law make
clear the standard an IJ should apply when deciding whether to allow
withdrawal of an application for admission, and that an applicant
granted withdrawal avoids the five–year bar on reapplying for
28
admission found in 8 U.S.C. § 1182(a)(9)(A)(i), these authorities do not
address the effect, if any, of determinations made in a proceeding in
which the application was withdrawn.
The parties and Amicus offer divergent views on this point.
Juras argues that, by withdrawing his application, he “relinquished
his green card” and, as a result, “may have considerable problems in
the future reentering the U.S. . . . .” Pet. Br. 16. But Juras cites no
authority for this point, and we have found none.
The government argues that there is a final order of removal in
this case because “the agency’s decision included a determination that
Mr. Juras is deportable . . . for having abandoned his lawful
permanent resident status” and the definition of “final order of
removal” includes “a determination that the alien is deportable . . . .”
Gov’t Supp. Br. 1–2 (internal quotation marks omitted). An implicit
premise of this argument is that there was an operative
inadmissibility finding that survived the withdrawal of Juras’s
29
application—that is, that the IJ’s “order,” not just its preliminary
thinking, contained the conclusion that Juras was removable.
Curiously, the government later argues that, although we have
jurisdiction because a final order of removal was entered against
Juras, we should dismiss the petition as moot. Citing our
unpublished decision in Hill v. Holder, 348 F. App’x 653 (2d Cir. 2009),
the government argues that “the withdrawal . . . means that Mr. Juras
is free to leave the United States without incurring a legal ‘injury,’ as
the order does not preclude him from reapplying for admission and
reasserting his claimed lawful permanent resident status.” Gov’t
Supp. Br. 4. This latter position would seem to imply that the IJ’s
finding of inadmissibility had no effect.
Indeed, Amicus draws precisely that conclusion from Hill v.
Holder: that the withdrawal of Juras’s application “render[ed] the
prior IJ finding [of inadmissibility] to be nothing more than an
advisory opinion that will not be binding on any future border official
30
or, should it come to it, any future IJ.” Amicus Br. 13. This, in the
view of Amicus, has two consequences. First, there is no final order
of removal because there is no finding of inadmissibility. Second, the
case is now moot.
Because it is central to the arguments made to us in the briefs,
a closer review of our decision in Hill v. Holder is in order, even though
it is a non-precedential summary order. Hill involved a petitioner
who had become an LPR in 1996. In re Hill, 2008 WL 5181745, at *1
(B.I.A. Nov. 12, 2008). In 2004, Hill was convicted of violating 18
U.S.C. § 1035(a)(2) by knowingly and willfully making materially
false statements in connection with the delivery of or payment for
health care benefits. Id. Hill then left the United States, came back,
and asked to be readmitted as a returning LPR. Id. An IJ found him
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for having
committed a crime of moral turpitude but let him withdraw his
application for admission. Id. Hill tried to appeal the IJ’s
31
determination that his crime of conviction qualified as a crime of
moral turpitude, but the BIA dismissed his appeal as moot. Id.Specifically, the BIA held that the “withdrawal of an application for
admission takes the question of inadmissibility (and indeed,
removability) ‘off the table’” and concluded that the IJ’s finding of
inadmissibility was “rendered inoperative” by the withdrawal of
Hill’s application. Id.Hill petitioned for our review, arguing that the inadmissibility
finding survived the withdrawal of his application. Hill, 348 F. App’x
at 655. We relied on the BIA’s reasoning that, because he withdrew
his application, Hill would be “entitled to a de novo consideration of
his admissibility” should he reapply for admission to the United
States and dismissed his petition as moot. Id. at 655–56.
Of course, In re Hill and Hill v. Holder were both non-
precedential opinions (by the BIA and our Court, respectively), and
therefore could not dictate our decision today. But even as persuasive
32
authority, we do not find them particularly enlightening because they
ultimately rest upon the BIA’s citation of various authorities that—
upon closer examination—do not discuss whether the withdrawal of
an application for admission renders any finding of inadmissibility a
legal nullity without future preclusive effect. See In re Hill, 2008 WL
5181745 at *1 (citing In re Manalo, 15 I. & N. Dec. 4 (B.I.A. 1974) (an
alien granted withdrawal departs the United States without being
excluded); In re Lepofsky, 14 I. & N. Dec. 718 (B.I.A. 1974) (IJ had power
to either allow withdrawal of application or enter an order of
exclusion and deportation, not to parole aliens into the United States);
In re Le Floch, 131 I. & N. Dec. 251, 252–54 (B.I.A. 1969) (an alien has
no right to withdraw her application for admission during an appeal
to the BIA after the entry of an order of exclusion, and withdrawal
during an appeal will be allowed only to prevent a gross miscarriage
of justice); In re Estrada-Tena, 12 I. & N. Dec. 429, 430–31 (B.I.A. 1967)
(holding that an applicant for admission may withdraw application
33
as of right and ordering that individual applicant be allowed to
withdraw, that the order entered in exclusion proceedings below be
withdrawn, and that the exclusion proceedings be terminated),
overruled in part by In re Vargas-Molina, 13 I. & N. Dec. 651 (B.I.A.
1971)). Nor have we found any other decision of this Court 4 or the
BIA that addresses the effect of a withdrawal of an application on a
putative finding of inadmissibility made in adjudicating that
application.
4 At least one other Court of Appeals has reached a conclusion in tension with that
reached by the BIA and our Court in Hill, albeit in a different posture. See Odei v.
DHS, 937 F.3d 1092 (7th Cir. 2019). Odei involved an alien who had been found
inadmissible, had his invalid visa cancelled, and was detained but not removed
because he had indicated a fear of return to his home country. Id. at 1093. He later
dropped the asylum claim and was allowed to withdraw his application for
admission and leave the United States voluntarily. Id. The alien later brought a
civil suit to challenge the decision not to admit him, but the Seventh Circuit
affirmed the dismissal of the suit under 8 U.S.C. § 1252(a)(2)(A)(i), which provides
that “no court shall have jurisdiction to review . . . any individual determination
or to entertain any other cause or claim arising from or relating to the
implementation or operation of an order of removal pursuant to § 1225(b)(1).” Id.
at 1094–95. The Court of Appeals rejected the alien’s argument that because he
had withdrawn his application, there was no “order of removal” sufficient to
trigger the jurisdictional bar. Id. It did so simply by analogizing to a case where
an IJ granted a waiver of removal which the BIA reversed, id. at 1094–95
(discussing Guevara v. Gonzales, 472 F.3d 972, 973, 975–76 (7th Cir. 2007)), an
analogy we find unhelpful in understanding the situation before us. See infra.
34
The answer to that question is key to deciding whether we have
jurisdiction over Juras’s petition for review based on a final “order of
deportation,” which the INA defines in the disjunctive as an order
“concluding that [an] alien is deportable or ordering deportation.”5
8 U.S.C. § 1101(a)(47)(A). Indeed, in arguing that we have jurisdiction
under the first prong of this definition because the IJ determined that
Juras is removable (even though she did not order his removal), the
government cites several of our precedents relying on the disjunctive
nature of § 1101(a)(47)(A). See, e.g., Alibasic v. Mukasey, 547 F.3d 78,
82–84 (2d Cir. 2008); Lazo v. Gonzales, 462 F.3d 53, 54–55 (2d Cir. 2006).
These precedents have addressed what it takes to satisfy the
first prong of the definition of an “order of deportation,” but have not
answered the question before us—whether the IJ’s finding of
inadmissibility, affirmed by the BIA, has any preclusive effect given
the withdrawal of Juras’s application (or, for that matter, whether
5 As noted above, the terms “deportation” and “removal” are used
interchangeably under the INA. See supra n.2.
35
there can be any findings at all on a withdrawn application). In
Alibasic, the IJ found the petitioner removable but granted his asylum
application. Alibasic, 547 F.3d at 82–83. The BIA then vacated the IJ’s
grant of asylum but remanded the matter so the IJ could consider the
availability of other relief like voluntary departure. Id. at 83–84. We
denied the government’s motion to dismiss for lack of jurisdiction,
reasoning that “[t]he IJ’s underlying finding of removability . . . still
stands and . . . the BIA has simply removed an impediment to the
removal that was ordered by the IJ.” Id. at 83 (internal quotation
marks omitted). The IJ’s initial finding of removability was therefore
a “final order of removal” that gave us jurisdiction over the petition
for review. Id. Here, by contrast, it is not clear whether the IJ’s
putative finding of inadmissibility (which the BIA affirmed) or her
statements about that finding “still stand” given that Juras withdrew
his application for admission, and the BIA affirmed that withdrawal.
36
Likewise, in a case even further afield from the present
situation, we denied a petition for review in Lazo v. Gonzales. 462 F.3d
at 55. In Lazo, the petitioner conceded removability before the IJ, who
granted him a waiver from removability. Id. at 54. The BIA
subsequently reversed the waiver. Id. The petitioner argued that the
BIA’s decision amounted to entry of a removal order in the first
instance—something reserved to an IJ, and which therefore exceeded
the BIA’s authority. Id. We disagreed. In our view, the IJ had issued
an order of removal within the definition of § 1101(a)(47)(A) because
the IJ concluded that the petitioner was removable, and the BIA
merely “removed an impediment to the removal that was ordered by
the IJ.” Id. That is, the operative finding of removability was ordered
not by the BIA, but by the IJ. 6 Id. As with Alibasic, Lazo provides no
6Similarly, in Rhodes-Bradford v. Keisler, 507 F.3d 77 (2d Cir. 2007), we dismissed a
petition for review where an IJ had terminated removal proceedings against the
petitioner without finding him removable, and the BIA reversed and ordered the
petitioner removed. Id. at 79. We vacated the BIA’s order, concluding that the BIA
did not have the authority to issue removal orders in the first instance, and
dismissed the appeal because there was no final order of removal—i.e., no order
37
guidance for the present case, because it is not clear whether the IJ’s
finding that Juras is inadmissible was ever operative.
In sum, our precedents do not answer the question we
currently face—whether there exists in this case an operative order
concluding that Juras is removable.
While we are grateful for Amicus’s arguments, we think it
prudent in these circumstances to allow the BIA the opportunity to
consider the arguments in the first instance, namely whether there is
currently a valid “finding of removability,” Alibasic, 547 F.3d at 83,
that presents us with a final order of removal sufficient to confer
jurisdiction under 8 U.S.C. §§ 1101(a)(47)(A) and 1252; 7 and
by the IJ finding that the petitioner was removable or ordering his removal. See id.
at 82.
7 Even where Congress has barred courts from exercising jurisdiction to review
certain types of immigration proceedings, “[w]e retain jurisdiction . . . to determine
whether [a] jurisdictional bar applies—that is, whether a petitioner satisfies the
jurisdictional facts.” James v. Mukasey, 522 F.3d 250, 253 (2d Cir. 2008); see also
Kuhali v. Reno, 266 F.3d 93, 100 (2d Cir. 2001) (“Our authority to address such
‘jurisdictional facts’ stems not from Congress’[s] creation of a particular remedy,
but rather from the inherent jurisdiction of Article III federal courts to determine
their jurisdiction.”). Where possible, we have simply determined the presence or
38
concomitantly, whether Juras has a legally cognizable interest in the
outcome such that his petition for review is not moot. We therefore
express no position at this time with respect to these questions.
“Generally speaking, a court of appeals should remand a case
to an agency for decision of a matter that statutes place primarily in
agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002).
Sometimes remand is “required by elementary principles of
administrative law,” and sometimes remand is, “as a matter of
discretion, . . . prudent and useful . . . .” Liu v. U.S. Dept. of Just., 455
F.3d 106, 116 (2d Cir. 2006) (emphasis omitted). As noted above, the
relevant statutes and regulations do not speak directly to the issue,
and there is a dearth of case law—both from the agency and from
Article III courts—on this important question, and so we think that
absence of those “jurisdictional facts” ourselves. See, e.g., Bell v. Reno, 218 F.3d 86(2d Cir. 2000) (determining the “jurisdictional fact” that petitioner had been
convicted of a qualifying aggravated felony triggering the jurisdictional bar found
at 8 U.S.C. § 1252(a)(2)(C)). We have at other times, however, found it prudent to
remand to the BIA for consideration, in the first instance, of issues upon which it
had not previously ruled that bear upon our jurisdictional analysis. See Gelman v.
Ashcroft, 298 F.3d 150, 152–53 (2d Cir. 2002).
39
remand is warranted as a matter of discretion. See id. (identifying
“[i]nsufficient agency attention,” “[s]tatutory ambiguity,” “[d]earth
of circuit law,” and “[i]mportance of the issue” as reasons counseling
remand as a prudential matter). On remand, “[t]he agency can bring
its expertise to bear upon the matter; it can evaluate the evidence; it
can make an initial determination; and, in doing so, it can, through
informed discussion and analysis, help a court later determine
whether its decision exceeds the leeway that the law provides.”
Orlando Ventura, 537 U.S. at 17. This process thus “serves the
convenience of the BIA as well as this Court, and promotes the
purposes of the INA.” Ucelo-Gomez v. Gonzales, 464 F.3d 163, 172 (2d
Cir. 2006). “The administrative process will best be vindicated by
clarity in its exercise,” S.E.C. v. Chenery Corp., 318 U.S. 80, 94 (1943)
(internal quotation marks omitted), and so we remand the matter to
the BIA to provide that clarity.
40
Accordingly, we grant in part Juras’s petition for review, vacate
the August 20, 2019, order of the BIA insofar as it affirmed the IJ’s
putative inadmissibility finding, and remand the matter back to the
BIA to clarify its understanding of the status of any admissibility
finding in light of the withdrawal of Juras’s application for admission
to the United States. Specifically, the BIA should explain what, if any,
preclusive effect the IJ’s putative finding of inadmissibility, as
affirmed by the BIA after withdrawal of Juras’s application, would be
given in subsequent immigration proceedings.
III. CONCLUSION
In sum, we hold as follows:
(1) We lack jurisdiction to review the BIA’s affirmance of the
IJ’s decision to allow Juras to withdraw his application for
admission because it is a decision committed by statute to
the discretion of the Attorney General.
(2) We lack jurisdiction to review the BIA’s denial of Juras’s
motion to reopen because it is sufficiently connected with
41
the BIA’s affirmance of the IJ’s withdrawal decision, and we
cannot, on review of a motion to reopen, exercise
jurisdiction over that which we could not review on direct
appeal.
(3) In order for this Court to determine its jurisdiction to review
the BIA’s affirmance of the IJ’s decision, the BIA should
clarify its understanding of the effect of the IJ’s findings
concerning Juras’s application for admission to the United
States once Juras was allowed to withdraw that application.
Specifically, the BIA should explain what, if any, preclusive
effect the IJ’s finding of inadmissibility (seemingly affirmed
by the BIA despite the withdrawal of the petitioner’s
application) would be given in subsequent immigration
proceedings.
We therefore DISMISS in part and GRANT in part Juras’s
petition for review of the BIA’s August 20, 2019, decision and remand
42
the matter to the BIA for consideration of whether the IJ’s
inadmissibility finding survived the withdrawal of Juras’s
application. We further DISMISS Juras’s petition for review of the
BIA’s December 23, 2019, denial of his motion to reopen.
43