News from the Courts

-BISSOO v. ATTORNEY GENERAL OF U.S
-Four Illegally Present Immigrants Charged with Running a Philadelphia Brothel
- Supreme Court Rules in Kucana v. Holder

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(Posted as found at: http://www.leagle.com/unsecure/page.htm?shortname=infco20100114106 )

BISSOO v. ATTORNEY GENERAL OF U.S.

JAIRAJ BISSOO, Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 08-1461.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) December 23, 2009.

Opinion filed: January 14, 2010.

Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges.

NOT PRECEDENTIAL

OPINION

PER CURIAM.

“Petitioner Jairaj Bissoo is a native and citizen of Trinidad and Tobago, who entered the United States as a visitor in 1995. He was placed in deportation proceedings soon thereafter. He then applied for asylum, but withdrew the application when the Immigration Judge (IJ) granted him voluntary departure to France by December 15, 1996. Bissoo was still in the United States in October 1996, when he married a United States citizen whom he had met in August of that year. On November 25, 1996, his wife filed an I-130 petition for an alien relative on his behalf and an I-485 application for adjustment of status. On December 18, 1996, the INS returned the I-485 application, explaining that Bissoo had to reopen his deportation case first. Bissoo hired an attorney to file motions to reopen and to extend his time for voluntary departure in immigration court, but neither motion was filed. His wife's I-130 petition filed on his behalf was approved in 1999. Bissoo remained in the United States for eleven years.

In September 2006, Bissoo sought sua sponte reopening in immigration court, in order to clear the way for him to proceed with his application for an adjustment of status. He asserted that prior immigration counsel was ineffective for failing to pursue timely reopening and voluntary departure extension motions in 1996. Next, he claimed that he was not barred from pursuing an adjustment of status because more than five years had passed since he violated the voluntary departure order. Bissoo also alleged that erroneous advice given to him by an INS employee in Newark caused his failure to file a motion to reopen and to leave the country by December 15, 1996.

The IJ denied Bissoo's motion, finding that there was no discernible basis for granting the extraordinary remedy of sua sponte reopening. The IJ also rejected the ineffectiveness of counsel claim because Bissoo failed to comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA agreed with the IJ's denial of reopening. First, the Board dismissed Bissoo's appeal because his motion to reopen in the immigration court was untimely under 8 C.F.R. § 1003.2(c)(2). Second, like the IJ, the BIA declined to exercise its discretion to reopen removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). Specifically, the Board rejected Bissoo's arguments that his eligibility for adjustment of status and the hardship to his family constituted exceptional circumstances warranting reopening. The BIA also rejected Bissoo's ineffective assistance of counsel claim as procedurally barred, and held that his claim of delay caused by an immigration officer's erroneous advice lacked evidence to support it.^{[ 1 ]} Bissoo filed a timely petition for review.

Bissoo argues that the BIA should have equitably tolled the ninety-day filing period for filing a motion to reopen under 8 C.F.R. § 1003.2(c)(2). Specifically, he asserts that an Immigration Officer's erroneous advice led him to follow the wrong procedure, which, in turn, caused him to file an untimely motion to reopen. The Government asserts that we lack jurisdiction to consider Bissoo's argument because he failed to exhaust it before the Immigration Court or the BIA.

Our jurisdiction is limited under § 242(d)(1) of the INA to cases where the petitioner "has exhausted all administrative remedies available to the alien as of right . . .." 8 U.S.C. 1252(d)(1); see Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Under our liberal exhaustion policy, "so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies." Joseph v. Attorney General, 465 F.3d 123, 126 (3d Cir. 2006). The exhaustion policy, however, does "not require the BIA to guess which issues have been presented and which have not." Bin Lin v. Attorney General, 543 F.3d 114, 122 (3d Cir. 2008). "[W]e will not punish the BIA by interfering in the administrative process with regard to issues that the BIA did not address." Id.

Bissoo acknowledges that he did not specifically invoke the phrase "equitable tolling" before the BIA. He contends, however, that he raised the factual predicate for such a claim in detail, sufficient to put the BIA on notice of it. Bissoo's notice of appeal and his brief appear to be devoted solely to justifying sua sponte reopening, the only ground upon which the IJ rejected his motion. But the very nature of Bissoo's erroneous advice claim goes to delay, which is relevant to the timeliness issue. We need not decide whether Bissoo raised the equitable tolling claim before the BIA, however. Even if Bissoo did not, we conclude that the BIA reached the issue sua sponte. Id. at 123-24 (holding that we have jurisdiction where the BIA engages in sua sponte consideration of a claim). Without calling it "equitable tolling," the BIA considered the erroneous advice claim and rejected it for lack of evidentiary support. Based on the foregoing, we are satisfied that we have jurisdiction to consider Bissoo's claim.

We have jurisdiction to review the BIA's decision to deny the motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2). We review the Board's denial of a motion to reopen as untimely for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir. 2002). Under this standard, we will reverse the Board's decision only if it is arbitrary, irrational, or contrary to law. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001); see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). Here, in the absence of any indication in the record to the contrary, we conclude that the BIA's denial of Bissoo's motion to reopen as untimely because it was filed almost ten years too late was not arbitrary, irrational, or contrary to law. We hold that the BIA acted well within its discretion in denying Bissoo's equitable tolling claim.^{[ 2 ]} According to Bissoo's affidavit, his only evidence, the immigration officer's alleged erroneous advice, was countermanded two months later, in December 1996, by the Immigration and Naturalization Service, which explained that he had to file a motion to reopen. (J.A. at 22-23, ¶¶ 8-11.) Bissoo failed to provide any evidence establishing that the immigration officer's erroneous advice caused him to miss the deadline for filing a timely motion to reopen for almost ten years. The Board's denial of Bissoo's ineffectiveness of counsel claim as procedurally barred is not arbitrary, irrational, or contrary to law. Bissoo has conceded that he failed to follow the requirements for raising such a claim pursuant to Matter of Lozada. (See Petitioner's Brief at 11.) We will therefore deny the petition for review.

To the extent that Bissoo challenges the BIA's decision not to invoke its discretionary authority to reopen under 8 C.F.R. § 1003.2(a), we agree with the Government that we lack jurisdiction to review it. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003).

Accordingly, the Government's motion to dismiss is granted in part, and we will dismiss for lack of jurisdiction Bissoo's petition for review of the Board's decision to deny reopening as a matter of discretion pursuant to 8 C.F.R. § 1003.2(a). We will deny the petition for review as to the BIA's decision that the motion to reopen was untimely pursuant to 8 C.F.R. § 1003.2(c)(2).”

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The Philadelphia Inquirer reports that four illegal immigrants have been charged with running a brothel in South Philadelphia. The indictment charges Jose Claudio Corona Cotonieto, Raymond Gonzalez Salazar, Nicolas Gonzalez Salazar, and a man known as "Leonel Rubio" with conspiracy to run a prostitution ring. The brothels were located at residential areas, including 1221-A S. Seventh St. and 1314 S. Sixth St.

If convicted of all charges, Cotonieto and Raymond Salazar face up to 180 years; Nicolas Salazar and Rubio, up to 145 years.

U.S. ICE agents identified and arrested 50 others believed to be in the country illegally through this investigation: 39 males from Mexico, nine males from Honduras, and two females from Mexico. They face removal proceedings in immigration court.

http://www.philly.com/inquirer/local/20100112_Four_charged_with_running_South_Phila__brothels.html

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CASE OUTLINE

OF

KUCANA V. HOLDER, 558 U.S. ____ (2010).

Special by Attorney Jack Richbourg of our Memphis Office

Facts:  Petitioner Agron Kucana, a native and citizen of Albania, entered the United States on a business visa in 1995 and overstayed his visa.  He now fears returning to his home country because of persecution on account of his political beliefs.

Procedure:  Petitioner applied for asylum and withholding in 1996 with the USCIS.  His application was denied and he was referred to the IJ for removal.  The IJ ordered him removed but scheduled a hearing on his request for asylum.  The petitioner did not appear for his individual hearing and was ordered removed in absentia by the IJ.  Petitioner filed a motion to reopen immediately and offered as an excuse for not coming to the previous hearing that he overslept.  The IJ denied the motion.  Petitioner appealed to the BIA which in 2002 affirmed the IJ’s decision.  Petitioner did not appeal from the BIA’s decision but did not leave the United States.  In 2006, petitioner filed a second motion to reopen addressed to the BIA citing that conditions had changed for the worse in Albania.  The BIA denied the motion holding that, on the contrary, things had improved in Albania and not worsened since 1997.  The petitioner appealed the decision of the BIA to the Seventh Circuit which held that 8 USC 1252(a)(2)(B)(ii) bars judicial review of both administrative decisions made discretionary by statute, and also decisions made discretionary by a regulation rather than by a statue. 

Issue:  Do Courts of Appeal have jurisdiction to review decisions deemed discretionary by regulations promulgated by the Attorney General as opposed to decisions deemed discretionary by statute?

Holding:  Courts of Appeals have jurisdiction to review decisions made discretionary by regulation.  The statute in question, 8 USC 1252(a)(2)(B)(ii), states no court shall have jurisdiction to review any action of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General, and the Attorney General has promulgated regulations found at 8 CFR 1003.2 that “[t]he decision to grant or deny a motion to reopen . . .is within the discretion of the [Board of Immigration Appeals (BIA)].  The bar to review set by Congress only applies to decisions specified by statute to be discretionary.  The Attorney General cannot by drafting a regulation deny the Courts their long-standing right of review.  This is because review provides safeguards, there is no specific Congressional intent to deny jurisdiction by regulation, and to do so would violate the separation of powers by allowing the Attorney General to insulate himself from judicial review by simply declaring his own decisions discretionary. 

To view the full decision of the court, visit: http://www.supremecourtus.gov/opinions/09pdf/08-911.pdf