Yerkovich v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 20 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

GALINA P. YERKOVICH,

Petitioner,

v. No. 02-9562

JOHN ASHCROFT, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER FROM
THE BOARD OF IMMIGRATION APPEALS
(No. A76-260-249)

Submitted on the briefs:

L. Ari Weitzhandler, Denver, Colorado, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Mark C. Walters, Assistant Director,
and James E. Grimes, Attorney, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for Respondent.

Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.

BRISCOE , Circuit Judge.
 Petitioner seeks review of a Board of Immigration Appeals (BIA) order

upholding a decision of the immigration judge (IJ) denying her request for a

continuance of her deportation proceedings and ordering her removal. Because

we conclude we lack jurisdiction, we dismiss the petition. 1

I.

Petitioner is a Russian native and citizen who was admitted to the United

States in 1996 on a visitor’s visa. She came to visit her daughter, who was then

married to an American citizen. Petitioner’s authorization to remain in this

country expired in July of 1997. In January of 1998 she was served by the

Immigration and Naturalization Service (INS) 2
with a notice to appear, charging

that she was removable under 8 U.S.C. § 1227(a)(1)(B) as an alien who had

stayed longer than permitted. Admin. R. at 171-72.

Petitioner first appeared before the IJ in April of 1998. At her request, she

was granted several continuances (to August 5, 1998, to December 16, 1998, to

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
2
On March 1, 2003, the INS ceased to exist, and its functions were
transferred to the U.S. Citizenship and Immigration Services within the newly
formed Department of Homeland Security. Yuk v. Ashcroft , 355 F.3d 1222, 1224
n.3 (10th Cir. 2004). Because the events underlying this petition for review
predate that reorganization, we refer to the INS in this opinion.

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March 3, 1999, to April 14, 1999). 3
At the April 14 hearing, having been

informed that her request for deferred action had been denied, petitioner admitted

the allegations in the notice to appear, conceded removability, and requested

relief in the form of a voluntary departure. The IJ continued the proceedings to

consider petitioner’s voluntary departure request.

The final hearing was held on July 6, 1999. Prior to that hearing,

petitioner filed a motion to continue the proceedings and to amend her pleadings,

stating that her daughter had recently passed a naturalization examination and

anticipated being sworn in as a citizen in the near future. Petitioner’s motion

indicated that if her daughter were to be naturalized, petitioner could apply for an

adjustment of status to that of a lawful permanent resident as an immediate

relative of a United States citizen.

3
The general purpose of petitioner’s requested continuances appears to be an
effort to obtain a “deferred action” by the INS to enable her to remain here to
help her daughter and care for her grandchild. In Velasco-Gutierrez v. Crossland ,
732 F.2d 792, 794 (10th Cir. 1984), this court described a deferred action as
“‘an informal administrative stay of deportation . . . having no effect on an alien’s
adjudication as deportable but potentially leading to an extended stay in this
country,’” and as “a ‘reprieve’ from deportation–an administrative decision by the
INS to take no action against an otherwise deportable alien.” (citations omitted);
see also Reno v. American-Arab Anti-Discrimination Comm. , 525 U.S. 471, 484
(1999) (explaining that “[a]pproval of deferred action status means that, for . . .
humanitarian reasons . . ., no action will thereafter be taken to proceed against an
apparently deportable alien . . . .”).

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 The IJ denied the motion to continue on June 29, 1999, but at the July 6

hearing, petitioner sought to “reraise” the issue. INS counsel opposed any

further continuances because at that point petitioner was only eligible for

voluntary departure and because it would likely take another eighteen months to

two years for petitioner’s visa petition to be approved, even assuming her

daughter were to become naturalized. In response, petitioner’s counsel argued

that it was unfair to punish petitioner for the fact that the INS could not timely

adjudicate her visa petition. Admin. R. at 62. The IJ denied petitioner’s motion

to further continue the proceedings, noting that the case had already been

pending for over a year and that it had been continued several times. The IJ then

granted petitioner’s request for voluntary departure.

The BIA dismissed petitioner’s appeal, finding no abuse of discretion by

the IJ. 4 The BIA found no prejudice because petitioner had “failed to submit

evidence establishing her daughter’s naturalization or the availability of an

immediate relative visa” and because she had “not, to date, presented evidence of

her eligibility for adjustment of status.” Id. at 2. The BIA decision also

informed petitioner she could “present evidence of her adjustment eligibility in a

motion to reopen filed in compliance with 8 C.F.R. § 3.2(c)(2002)” (now

4
The BIA noted that the “only issue raised on appeal” was the IJ’s failure to
grant a further continuance of the proceedings so petitioner’s “daughter could
complete the naturalization process.” Admin. R. at 2.

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codified at 8 C.F.R. § 1003.2(c)). Id. at 2 n.1. She did not file a motion to

reopen.

II.

On appeal, the government challenges this court’s jurisdiction, arguing that

the IJ’s decision to grant or deny a continuance is a discretionary action that we

are precluded from reviewing under 8 U.S.C. § 1252(a)(2)(B)(ii), which states, in

relevant part:

(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court shall
have jurisdiction to review–

...

(ii) any other 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, other than the granting of relief
under section 1158(a) of this title.

The phrase “this subchapter” refers to 8 U.S.C. §§ 1151-1378. Van Dinh

v. Reno , 197 F.3d 427, 433 (10th Cir. 1999). An IJ’s authority to conduct

removal proceedings is found in 8 U.S.C. § 1229a(a), a section within the

referenced subchapter. Although the statutes themselves do not specifically

confer discretion on the Attorney General to grant or deny a continuance, the

regulations clearly confer such discretion on the IJ. See 8 C.F.R. § 1003.29

(“[t]he Immigration Judge may grant a motion for continuance for good cause

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shown”) (emphasis added). In addition, “[i]mmigration judges and the Board of

Immigration Appeals are designees of the Attorney General and thus are governed

by provisions regarding the Attorney General. See 8 C.F.R. § 3.10 [now 8 C.F.R.

§ 1003.10].” Valenzuela-Alcantar v. INS , 309 F.3d 946, 949 (6th Cir. 2002)

(concluding that IJs and the BIA make discretionary decisions when addressing

“‘extreme hardship’” under former 8 U.S.C. § 1254 (covering suspension of

deportation)); Urena-Tavarez v. Ashcroft , 367 F.3d 154, 158 n.6 (3d Cir. 2004)

(holding that IJs are Attorney General’s designees).

We must answer the jurisdictional question before proceeding further:

Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist,
the only function remaining to the court is that of announcing the
fact and dismissing the cause. On every writ of error or appeal, the
first and fundamental question is that of jurisdiction, first, of this
court, and then of the court from which the record comes. This
question the court is bound to ask and answer for itself, even when
not otherwise suggested, and without respect to the relation of the
parties to it. The requirement that jurisdiction be established as a
threshold matter spring[s] from the nature and limits of the judicial
power of the United States and is inflexible and without exception.

Payton v. United States Dep’t of Agric. , 337 F.3d 1163, 1167 (10th Cir. 2003)

(quoting Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94-95 (1998)).

Petitioner did not respond to the government’s argument that this court

lacks jurisdiction to review the IJ’s discretionary denial of a continuance.

Rather, she apparently relies on the general grant of jurisdiction over final orders

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of removal found at 8 U.S.C. § 1252(a)(1), even though she inadvertently cited to

8 U.S.C. § 1252(b), which simply describes requirements for review of removal

orders. Pet’r Br. at 3. In this case, however, petitioner conceded deportability

and was granted the only form of relief to which she was entitled–voluntary

departure. Thus, the only action challenged is the IJ’s denial of an indefinite

continuance, which petitioner has at least implicitly conceded was a matter of

discretion. Indeed, the final hearing before the IJ, petitioner specifically relied

on Matter of Sibrun , 18 I. & N. Dec. 354, 356-57 (BIA 1983) (holding

continuance is within IJ’s sound discretion). Admin. R. at 63. However, in her

appellate brief, petitioner now suggests, without authority, that Matter of Sibrun

should be overruled. Pet’r Br. at 7.

III.

In Van Dinh , 197 F.3d at 433, we held that because Ҥ 1252(a)(2)(B)(ii)

provides that no court has jurisdiction to review any decision or action the

Attorney General has discretion to make ‘under this subchapter’ except for ‘the

granting of relief under section 1158(a) [asylum],’” the plaintiffs were barred

from proceeding in district court with a Bivens action seeking to restrain their

transfer, pending deportation, from an INS facility in Colorado to another

facility. The court noted that § 1252 “addresses a multitude of jurisdictional

issues, including ones that are collateral to the review of a final order of

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deportation.” Id. at 432 (listing specific sections barring review and/or limiting

jurisdiction). This is a broad restriction on our jurisdiction, in keeping with “the

limitations on judicial review, designed to ‘protect[] the Executive’s discretion

from the courts . . . [which] can fairly be said to be the theme of the [Illegal

Immigration Reform and Immigrant Responsibility Act of 1996].’” Tapia Garcia

v. INS , 237 F.3d 1216, 1218 (10th Cir. 2001) (quoting Reno v. Am.-Arab

Anti-Discrimination Comm. , 525 U.S. 471, 486 (1999)). In a case which did not

involve the Attorney General’s exercise of discretion, we reiterated that

Ҥ 1252(a)(2)(B)(ii) strips the courts of jurisdiction to review only matters falling

within the Attorney General’s discretion.” Sierra Immigration & Naturalization

Serv. v. INS , 258 F.3d 1213, 1217 (10th Cir. 2001).

Our sister circuits have also recognized that “the plain meaning of

§ 1252(a)(2)(B)(ii)’s text” bars courts from reviewing relief “specified under this

subchapter.” Samirah v. O’Connell , 335 F.3d 545, 549 (7th Cir. 2003) (quoting

8 U.S.C. § 1252(a)(2)(B)(ii)), cert. denied , No. 03-1085, 2004 WL 194014 (U.S.

June 7, 2004); El-Khader v. Monica , 366 F.3d 562, 566 (7th Cir. 2004) (noting

“[o]nly discretionary decisions by the Attorney General to grant asylum under

§ 1158(a) are expressly excepted from the force and effect of

§ 1252(a)(2)(B)(ii)”); CDI Info. Servs., Inc. v. Reno , 278 F.3d 616, 621 (6th Cir.

2002) (holding “Congress has plainly precluded review of discretionary decisions

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like the . . . [denial of a] visa extension). See also Onyinkwa v. Ashcroft , No. 03-

2160, 2004 WL 1574514 *2 (8th Cir. July 15, 2004) (holding “the power to grant

continuances is within the discretion of immigration judges”) ( to be published at

376 F.3d 797). The CDI Information Services court also noted that the relevant

regulation governing the visa extension request, 8 C.F.R. § 214.1(c)(5), “clearly

confers” discretion on the INS. Id. at 619.

The Ninth Circuit, however, has held that § 1252(a)(2)(B)(ii) does not

refer to discretionary decisions, but rather “to acts the authority for which is

specified under the [Immigration and Naturalization Act] to be discretionary.”

Medina-Morales v. Ashcroft , 371 F.3d 520, 528 (9th Cir. 2004) (quoting Spencer

Enters., Inc. v. United States , 345 F.3d 683, 689 (9th Cir. 2003)). Thus, that

court has concluded that “the jurisdictional bar in § 1252(a)(2)(B)(ii) applies

only to acts over which a statute gives the Attorney General pure discretion

unguided by legal standards or statutory guidelines.” Id. To the extent these

holdings may conflict with Van Dinh , we are bound, of course, by our own

precedent. Moreover, the dissent in Spencer Enterprises noted that the majority

opinion was “completely at odds” with Van Dinh , which the dissent characterized

as “recogniz[ing] that discretionary decisions that do not contain explicitly

discretionary language are nevertheless barred from judicial review under

§ 1252(a)(2)(B)(ii).” Spencer Enters., 345 F.3d at 697-98 (Beezer, J.,

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dissenting). The dissent further concluded that the majority was also in conflict

with a prior Ninth Circuit decision, Matsuk v. INS , 247 F.3d 999, 1002 (9th Cir.

2001), and with CDI Information Services , 278 F.3d at 620, both of which had

“held that § 1252(a)(2)(B)(ii) precludes judicial review of the Attorney General’s

discretionary decisions.” Spencer Enters., 345 F.3d at 695.

Finally, we note that the Third Circuit recently addressed these differing

views of the scope of § 1252(a)(2)(B)(ii), describing this court as holding the

statute “applies to all discretionary decisions enumerated in the relevant

subchapter of Title 8 . . ., regardless of the context in which the decisions were

made.” Urena-Tavarez , 367 F.3d at 159 (citing Van Dinh , CDI Info. Servs., and

Samirah ). The court in Urena-Tavarez also observed that Spencer Enterprises

reached a different conclusion, holding instead that § 1252(a)(2)(B)(ii) does not

refer to discretionary decisions but rather to “‘acts the authority for which is

specified . . . to be discretionary.’” 369 F.3d at 159 (quoting Spencer Enters. ,

345 F.3d at 689). While we acknowledge the different view of the Ninth Circuit,

as noted earlier, we decline to follow it.

We hold that 8 U.S.C. § 1252(a)(2)(B)(ii) bars review of the IJ’s

discretionary decision denying petitioner’s motion for a continuance.

Accordingly, the petition for review is DISMISSED.

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