Gao, Yuan v. Gonzales, Alberto ( 2006 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-3215
    YUAN GAO,
    Petitioner,
    v.
    ALBERTO R. GONZALES, Attorney General
    of the United States,
    Respondent.
    ____________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    ____________
    SUBMITTED AUGUST 26, 2006—DECIDED SEPTEMBER 25, 2006
    ____________
    Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
    EASTERBROOK, Circuit Judge. At the suggestion of an
    immigration judge, Yuan Gao withdrew his application for
    asylum in exchange for an opportunity to depart volun-
    tarily. He did not use this opportunity, however. Regretting
    his decision to abandon the request for asylum (a step that
    he attributes to bad legal advice), he asked the immigration
    judge to reopen. The IJ declined, the Board of Immigration
    Appeals dismissed the appeal, and the alien filed a petition
    for judicial review.
    In lieu of a brief, the Attorney General has filed a motion
    to dismiss for want of jurisdiction. The basis of this motion
    is that on August 4, 2006, about a month after the alien
    2                                                 No. 05-3215
    filed his opening brief in this court, the Board reopened the
    proceedings on its own motion. According to the respondent,
    this means that we must dismiss the petition, because we
    are entitled to review only final orders of removal, see 
    8 U.S.C. §1252
    (a)(1), and this order is no longer final. See
    Orichitch v. Gonzales, 
    421 F.3d 595
    , 597-98 (7th Cir. 2005);
    Bronisz v. Ashcroft, 
    378 F.3d 632
    , 637 (7th Cir. 2004).
    This supposes, however, that the Board may withdraw its
    decision after a petition for review has been filed. The
    Attorney General (representing the Board) regularly asks
    for permission to reopen or reconsider an order, and we held
    in Xue Ye Ren v. Gonzales, 
    440 F.3d 446
     (7th Cir. 2006),
    that such a request should be granted as a matter of course.
    We assumed that a request was necessary. Normally a
    petition for judicial review, like an appeal from a judgment
    of a district court, transfers authority over the case; if both
    tribunals could proceed in the same matter at the same
    time, confusion and wasted effort would ensue. See Griggs
    v. Provident Consumer Discount Co., 
    459 U.S. 56
     (1982);
    Apostol v. Gallion, 
    870 F.2d 1335
     (7th Cir. 1989). We
    therefore directed the parties to address the question
    whether the Board needs our permission to act after a
    petition for review has been filed—for, if it does, the Board’s
    latest order is ineffectual and this court retains jurisdiction.
    The approach that governs appeals within the judicial
    system does not, however, apply here. Stone v. INS, 
    514 U.S. 386
     (1995), concluded that, in immigration law, the
    agency’s decision on the merits and an order denying
    reconsideration or reopening are independently reviewable.
    One consequence is that the alien must file an immediate
    petition if he wants the Board’s principal decision to be
    reviewable; an alien who chooses to wait and files a petition
    only after reconsideration has been denied presents for
    judicial review only the order denying reconsideration. A
    second consequence—which was assumed rather than
    discussed in Stone—is that the Board may rule on an alien’s
    No. 05-3215                                                3
    request for reconsideration or reopening while a petition for
    review of the main decision is before the court. That’s how
    it would be possible for two petitions for judicial review to
    be pending simultaneously and consolidated, as 
    8 U.S.C. §1252
    (b)(6) provides. (At the time of Stone, this provision
    was in 8 U.S.C. §1105a(a)(6); its substance is unchanged by
    intervening legislation.) Because the Board is empowered
    to decide the pending issue, a grant of relief is no more
    problematic than a denial; there would be no point to a rule
    that treats the subjects as independent but ties the Board’s
    hands by requiring a mechanical denial of every motion for
    reconsideration. It is only a small step to say that, if the
    Board may grant a motion to reconsider or reopen without
    leave of court, it may reopen sua sponte. If, as Stone holds,
    a single immigration matter may be before the court and
    the agency for decision simultaneously, it cannot matter
    whether the agency’s decision is prompted by a litigant’s
    request or its internal processes.
    So we hold that the Board did not need judicial permis-
    sion to reopen a proceeding. Accord, Lopez-Ruiz v. Ashcroft,
    
    298 F.3d 886
     (9th Cir. 2002). (As far as we can tell, Lopez-
    Ruiz is the only other published appellate decision that has
    addressed this issue.) Yuan Gao has asked us to retain
    jurisdiction while the Board reconsiders, but there is
    nothing to retain jurisdiction of. The order sought to be
    reviewed is no more. Any judicial act while there is no
    outstanding order of removal would be advisory. If the
    Board enters a new final order, that step could be met by a
    fresh petition for review.
    The Attorney General’s motion to dismiss is granted.
    4                                         No. 05-3215
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—9-25-06