United States Court of Appeals
For the First Circuit
No. 03-1692
LUIS HUMBERTO ESTRADA-CANALES, et al.,
Petitioners,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Bowman,* Senior Circuit Judge,
and Howard, Circuit Judge.
Roberto Gonzalez, with whom Audette, Bazar, Berren & Gonzalez,
Inc. was on brief, for petitioners.
Jennifer L. Lightbody, Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Peter D. Keisler, Assistant Attorney General, Civil
Division, and Mark C. Walters, Assistant Director, were on brief,
for respondent.
February 21, 2006
* Of the Eighth Circuit, sitting by designation.
LYNCH, Circuit Judge. The lead petitioner in this
immigration case is Luis Humberto Estrada-Canales ("Estrada"); the
six others are his children. The case involves aspects of the ABC
Agreement, concerning special procedures for certain Salvadorans
and Guatemalans who enter the United States. See Am. Baptist
Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). It
raises one legal issue about interpretation of 8 U.S.C. § 1155
(1994).
The petitioners are natives and citizens of Guatemala,
who entered the United States illegally. The Immigration Judge
ordered them excluded and deported, deemed their applications for
asylum and withholding of deportation abandoned, and determined
that they were ineligible for waivers of inadmissibility and
suspension of deportation. The Board of Immigration Appeals denied
petitioners' appeal from that decision. This is a petition for
review of that order of the BIA.
This case raises two sets of issues. One set arises over
the question of whether the petitioners are eligible for benefits
under the ABC Agreement. The government denies this court has
jurisdiction over such claims. We do not decide those
jurisdictional issues. Rather, we find petitioners have waived
their claim by strategic decisions on their part.
As to the second set of issues, the usual petition for
review claims (pertaining to petitioners' excludability as charged
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and to asylum), the respondent agrees that this court has
jurisdiction. We deny the petition for review. In doing so, we
also uphold the interpretation by the BIA and the IJ of 8 U.S.C.
§ 1155 (1994) that aliens who present themselves at a point of
entry in the United States based on visa petitions fraudulently
obtained in circumstances such as these are inadmissible and not
entitled to entry.
I.
The basic facts of this case are not in dispute. Estrada
first entered the United States without inspection in 1985. On
October 9, 1985, Estrada became an employee of P&B Manufacturing
("P&B") in Rhode Island; he worked as a jewelry polisher. In 1989,
P&B filed with the Department of Labor, on Estrada's behalf, an
Application for Alien Employment Certification. Later, P&B also
filed with the INS1 a Petition for Prospective Immigrant Employee
(Form I-140). This petition was approved on April 26, 1993. By
then, in fact since August 9, 1991, Estrada had been laid off, but
he did not notify the INS. After being laid off, Estrada did not
work at P&B other than as a subcontractor.
1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6
U.S.C. § 291(a)). For the sake of simplicity, we use the term
"INS" throughout the opinion.
-3-
Meanwhile, in July 1991, Estrada filed a form with the
INS in order to register as a class member under the ABC Agreement.
The ABC Agreement is a class action settlement agreement that was
approved in American Baptist Churches, 760 F. Supp. 796. "The ABC
litigation arose out of systemic challenges by certain Salvadorans
and Guatemalans in the United States to the processing of asylum
claims filed under . . . 8 U.S.C. § 1158(a)." Matter of Morales,
21 I. & N. Dec. 130, 132 (BIA 1996). The ABC agreement
"contemplates a special procedure under which alien class members
are entitled, under certain specified conditions, to new
proceedings before the [INS] to determine their right to asylum or
any other rights and benefits established under the agreement."
Id. The ABC Agreement provides that during those special new
proceedings, the pending case before the IJ is to be
administratively closed. Id. at 134.
In March 1992, Estrada applied for asylum, listing his
children on the application.2
In June 1995, Estrada went to Guatemala. He says his
trip "was taken solely to bring his children" back to the United
States, and that claim does not seem to be in dispute. Estrada
went to the United States Consulate in Guatemala City to obtain his
immigrant visa. There, he presented a forged letter, purportedly
2
The asylum application lists only five children (Brenda,
Beatriz, Lazaro, Luis, and Kimberly), omitting Silvia. The
exclusion proceedings involved all six of Estrada's children.
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from P&B, indicating that he continued to be employed full-time by
P&B. Of course, Estrada had not been so employed since 1991.
Unaware of the fraud, the consulate issued the visa on September
12, 1995, on the basis of an approved labor certification. Estrada
and his children then attempted to enter the United States on
October 1, 1995, but the INS detained them because the INS
inspector could not find an approved labor certification among the
documents. The INS paroled Estrada and his children into the
United States for deferred inspection by the INS office in
Providence, Rhode Island.
On October 24, 1995, an immigration inspector sent a
letter to P&B, requesting, inter alia, information regarding
Estrada's employment. A representative of P&B replied with a
letter stating that the letter Estrada had presented to the
consulate was a forgery, and that Estrada had not been employed by
P&B since 1991. On November 8, 1995, P&B withdrew the Petition for
Prospective Immigrant Employee (Form I-140) that it had previously
filed on Estrada's behalf. A week later, on November 15, 1995, the
INS placed the Estradas in exclusion proceedings.3
There was an initial hearing before an IJ on October 1,
1996. The INS alleged that the Estradas were excludable on two
grounds: first, they lacked a valid labor certification, see 8
3
Estrada was the lead applicant for relief. The IJ and the
BIA, as well as the parties, have treated the claims of Estrada and
his children collectively, focusing primarily on Estrada himself.
-5-
U.S.C. § 1182(a)(5)(A)(i); and second, they were immigrants without
valid unexpired immigrant visas, see id. § 1182(a)(7)(A)(i)(I).
The Estradas denied that they were excludable as charged, and they
indicated that they sought the opportunity to apply for admission
as lawful permanent residents, termination of the proceedings,
asylum, withholding of deportation, suspension of deportation, and
waivers of excludability under § 212(d)(3) and (k) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1182(d)(3), (k).
At a hearing on January 7, 1997, before a second IJ, the
parties agreed to stipulate to the historical facts just described.
The IJ noted that in addition to the question of excludability on
the grounds charged, there was a question of whether the
proceedings should be administratively closed pursuant to the ABC
Agreement, as the Estradas had requested. The IJ reset the
proceedings on the latter question, and on other issues not
pertinent here, for a later date.
On February 4, 1997, an INS asylum office director sent
a letter to Estrada. The letter stated:
Information submitted to this office by
INS Litigation Unit, Boston reflects that you
attempted to enter the United States at Miami
International Airport on October 1, 1995,
without valid immigration documents.
The Settlement Agreement in American
Baptist Churches v. Thornburgh, 760 F. Supp.
796 (N.D. Cal. 1991) (ABC), provides that
class members apprehended at the time of entry
after December 19, 1990, shall not be eligible
for its benefits. See Paragraph 2 of the
Settlement Agreement. Based on the above
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facts, it is determined that you are
ineligible for benefits under the ABC
Settlement Agreement.
That is, the INS' position was that while Estrada may have
originally been within the ABC class, he was not "eligible for its
benefits."
On March 4, 1997, Estrada brought an action in the
District Court for Rhode Island. He sought a declaration that he
was entitled to ABC benefits, and he sought an injunction against
continuation of the regular exclusion proceedings until his rights
under the agreement were honored.
On September 2, 1997, the IJ issued a written decision
resolving several of the issues in the case. She held that
exclusion proceedings were appropriate and that the Estradas were
excludable as charged; in so holding, she rejected the Estradas'
argument that, because they had already begun their journey to the
United States when the visa petition was withdrawn, they had valid
visas, they were entitled to enter the United States, and they were
entitled to lawful permanent resident status. The IJ also held
that the family was not entitled to administrative closure of the
case before her under the ABC Agreement so that a special ABC
Agreement hearing could be held.4
4
The IJ also held that pursuant to § 244 of the INA, 8 U.S.C.
§ 1254 (1994) (repealed 1996), the Estradas were statutorily
ineligible for suspension of deportation, a ruling she reiterated
in later proceedings. Also in later proceedings, the IJ found that
waivers of inadmissibility under INA § 212(d)(3) and (k) did not
-7-
The IJ held that the Estradas were properly in exclusion
proceedings because "[o]nce the [INS] determined that the validity
of [Estrada's] underlying labor certification was at issue, it had
the right to deny [the Estradas] entrance to the United States and
place [them] in exclusion proceedings." P&B did not withdraw the
petition it had earlier filed on Estrada's behalf until after
Estrada had already commenced his journey to the United States, and
therefore, the IJ reasoned, the withdrawal did not serve to
automatically revoke Estrada's employment-based visa. See 8 C.F.R.
§ 205.1(3). Nonetheless, the IJ found that the withdrawal by the
employer was still "significant." The mere fact that there was no
automatic revocation did not mean that the Estradas' visas were in
fact valid and that the family was in fact entitled to seek lawful
permanent resident status. The IJ noted that under former INA
§ 221(h), 8 U.S.C. § 1201(h) (1994), nothing in the Immigration and
Nationality Act entitled an alien, even one who had an approved
visa at the time he commenced his journey, to enter the United
States, if upon arrival, he is found inadmissible.
The IJ sustained the two charges of excludability.
First, the IJ analyzed the validity of Estrada's visa, taking into
account the underlying visa petition and the employment
apply. The BIA affirmed the IJ's decisions on these points. In
their petition for review of the BIA's decision, the Estradas do
not discuss suspension of deportation or waivers of
inadmissibility, so they have waived any argument they might have
made as to these forms of relief.
-8-
relationship on which it depended. The IJ noted that the visa was
based on an approved labor certification purportedly filed by P&B,
and that as part of that process, Estrada submitted to the
consulate a forged letter stating that he was a full-time employee
of P&B. The IJ also noted that P&B's representative had, in fact,
refused to write for Estrada a letter stating that Estrada was
still employed by P&B, and had instead written a letter explaining
that Estrada had been laid off on August 9, 1991, and the IJ found
that "[i]f such a letter had been submitted in support of the labor
certification and the employment-based visa, . . . neither would
have been granted." The IJ concluded that P&B was unwilling to
serve as petitioner on Estrada's behalf, that Estrada "was not
entitled to the status accorded to him by the visa petition," and
that "the labor certification was improvidently issued." The IJ
held that "the visa issued to [the Estradas] was invalid and . . .
[they are] excludable" as charged.
As for administrative closure under the ABC Agreement,
the IJ noted that neither she nor the BIA had jurisdiction to
review the INS' determination of an alien's eligibility for
benefits under the ABC agreement. Here, the INS had already
determined that the Estradas were not entitled to benefits under
the agreement, as shown in the February 4, 1997 letter. In light
of that determination, the IJ concluded that administrative closure
was not appropriate. The IJ noted that, aside from the ABC
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agreement, the Estradas could still pursue applications for asylum
and withholding of deportation before the Immigration Court.
The IJ's September 2, 1997 decision concluded with two
orders: (1) the charges of excludability were sustained, and (2)
the motion to administratively close the proceedings was denied.
The exclusion proceedings resumed on September 25, 1997.
During that proceeding, the IJ orally incorporated her September 2
written decision. She gave the Estradas until January 12, 1998 to
either apply for asylum or advise the Immigration Court that they
were not seeking such relief.
The final proceedings before the IJ occurred on January
22, 1998.5 Counsel for the Estradas informed the IJ that the
Estradas were not going to file applications for asylum because
they felt that to do so "would be giving up procedural due process
rights that they have to an administrative political asylum hearing
as they are registered ABC class members." The IJ concluded the
January 22 proceedings by issuing oral rulings resolving the
remaining issues in the case: she incorporated her prior written
decision of September 2 and her oral decision of September 25; she
deemed the Estradas' applications for asylum and withholding of
5
On January 9, 1998, the Estradas requested a continuance,
in part because the Rhode Island district court had not yet decided
Estrada's case, and "should [it] decide [the issue of eligibility
for benefits under the ABC Agreement] in favor of [Estrada] then
Exclusion Proceedings should be administratively closed." The
government opposed the continuance, and the IJ denied the
continuance on January 14, 1998.
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deportation abandoned; and she ordered the Estradas excluded as
charged and deported. That same day, the IJ's final oral decision
was also embodied in written form.6
The Estradas appealed the IJ's orders to the BIA. They
argued that they were not excludable because the visa petition was
withdrawn after they arrived in the United States, and the
withdrawal was consequently not valid and did not work a revocation
of the visa petition underlying their visas. "[I]t follows [that
the Estradas] have valid visa petitions and they should therefore
be admitted as . . . lawful permanent residents."
The Estradas also argued that Estrada was a registered
ABC class member who was entitled to administrative closure of the
proceedings before the IJ in favor of the ABC Agreement special
proceedings. Citing Matter of Morales, 21 I. & N. Dec. 130, they
argued that Estrada's departure from the country and his
apprehension upon reentry did not divest him of his rights under
the ABC Agreement. They added that the asylum office's
determination of Estrada's ineligibility for ABC benefits had been
made without a hearing or other "due process safeguards." The
Estradas mentioned the ABC-related action they had brought in the
federal district court, but they stated that that court had not yet
6
On January 22, 1998, the IJ issued for each petitioner a
written order summarizing her final oral decision. Each written
order stated that the IJ's final oral decision was the official
opinion in the case.
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decided the matter. The Estradas' brief on appeal to the BIA was
dated August 31, 1998.
The Estradas also argued that the IJ erred in deeming
their applications for asylum and withholding of deportation
abandoned, because being forced to apply for such relief in
exclusion proceedings would have violated their rights under the
ABC Agreement.
On September 16, 1999, during the pendency of the
Estradas' appeal to the BIA, the district court decided the case
Estrada had earlier filed. The government had moved to dismiss
Estrada's claim for injunctive relief and moved for summary
judgment on Estrada's claim for declaratory relief. The court
granted the government's motion to dismiss with respect to
Estrada's claim for injunctive relief, finding that 8 U.S.C.
§ 1252(g) had divested the court of jurisdiction to enjoin the
exclusion proceeding. The government conceded the court had
jurisdiction over the declaratory judgment part of the case. The
court, however, noted that it had discretion whether to issue a
declaratory judgment. The court declined to exercise its
jurisdiction, noting that "adjudicating Estrada's claim for a
declaratory judgment . . . would result in parallel litigation in
which issues arising from a single dispute would be litigated in
different fora, thereby resulting in duplication of effort and
either piecemeal litigation or the possibility of inconsistent
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results or both." The court denied the government's motion for
summary judgment with respect to Estrada's claim for declaratory
relief, and it gave Estrada twenty days to show cause as to why his
claim for declaratory judgment should not be dismissed without
prejudice. On October 14, 1999, the court dismissed Estrada's
complaint without prejudice, stating that he had failed to show
cause. Estrada had not filed anything in the district court after
the September 16 order, nor did he file anything after October 14,
1999.
Nothing in the certified administrative record indicates
that the Estradas ever brought the district court's decision to the
attention of the BIA, even though their appeal was still pending
before the BIA.
On April 15, 2003, the BIA dismissed the Estradas' appeal
from the IJ's decision. The BIA agreed with the IJ on the
appropriateness of exclusion proceedings and on excludability as
charged, for essentially the same reasons as those cited by the IJ.
The BIA stated that administrative closure under the ABC Agreement
would not have been appropriate, because the INS had already made
a determination that Estrada had no right to benefits under the
agreement. The BIA did not mention Estrada's suit in the district
court, which had been brought to the BIA's attention, or the
district court's ultimate decision, which had not. Finally, the
BIA noted that the IJ gave Estrada numerous opportunities to apply
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for asylum and withholding, but he refused to apply, and held that
the IJ did not err in determining that those applications were
abandoned. This petition for review followed.
The issues are whether, in light of the standards of
review, the BIA erred in refusing to allow administrative closure
of the exclusion proceedings, whether it erred in determining that
the Estradas were excludable as charged, and whether it erred in
deeming the asylum applications abandoned. We deny the petition.
II.
A. Standard of Review
A deferential standard of review applies in this case.
"[A] decision that an alien is not eligible for admission to the
United States is conclusive unless manifestly contrary to law." 8
U.S.C. § 1252(b)(4)(C). Moreover, the BIA's "interpretations of
the statutes and regulations it administers are accorded
substantial deference"; where a statute is "silent or ambiguous,"
we uphold the BIA's interpretation, so long as it is "'reasonable'
and consistent with the statute." Elien v. Ashcroft, 364 F.3d 392,
396-97 (1st Cir. 2004).
Finally, in a petition for review of a final order of
removal, the "administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B). This standard of review as
to factual questions is commonly known as the "substantial evidence
-14-
test," and substantial evidence exists where the decision is
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Katebi v. Ashcroft, 396 F.3d
463, 466 (1st Cir. 2005) (internal quotation marks omitted)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).7
B. Administrative Closure under the ABC Agreement
The Estradas' first challenge to the exclusion and
deportation order is that the exclusion proceedings should not even
have been allowed to continue: they say that they were eligible ABC
class members entitled to administrative closure of their
immigration proceedings, and that the proceedings should only have
been reopened once it was determined at a "hearing conducted in
accordance with the mandates of the ABC agreement" that they were
not entitled to ABC benefits.
Under Paragraph 1 of the ABC Agreement, the settlement
class includes only "all Salvadorans in the United States as of
September 19, 1990," and "all Guatemalans in the United States as
7
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
302-23, does not affect our analysis of the issues in this petition
for review. At oral argument, the government agreed that in
general, district courts can review the question of entitlement to
benefits under the ABC Agreement, and that this was unchanged by
the REAL ID Act. The government argues that in the particular
context of this case, transfer of the ABC issue to the district
court would be improper, because under 8 U.S.C. § 1252, as amended
by the REAL ID Act of 2005, district courts lack jurisdiction over
petitions for review. We do not reach this jurisdictional
question, and the REAL ID Act does not affect any other issues in
this case.
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of October 1, 1990." Am. Baptist Churches, 760 F. Supp. at 799.
Paragraph 2 states which class members are eligible for a "de novo,
unappealable asylum adjudication before an Asylum Officer,
including a new interview." Id. First, the class member must not
have been convicted of an aggravated felony as defined in the INA.
Id. Second, for Guatemalans, the class members must "indicate to
the INS in writing their intent to apply for a de novo asylum
adjudication before an Asylum Officer, or otherwise to receive the
benefits of this agreement, within the period of time commencing
July 1, 1991 and ending on December 31, 1991." Id. at 800.
Finally, "[c]lass members apprehended at time of entry after the
date of preliminary approval of this agreement shall not be
eligible for the benefits hereunder." Id. The district court
provisionally approved the agreement on December 19, 1990. Id. at
797.
Paragraph 17 of the Agreement states that "[t]he INS may
only detain class members, eligible for relief under paragraph 2,
who are otherwise subject to detention under current law and who:
(1) have been convicted of a crime involving moral turpitude for
which the sentence actually imposed exceeded a term of imprisonment
in excess of six months; or (2) pose a national security risk; or
(3) pose a threat to public safety." Id. at 804.
Paragraph 19 provides for administrative closure pending
the new asylum adjudication. It states, in pertinent part:
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[A]ny class member whose deportation
proceeding . . . was commenced after November
30, 1990 . . . may ask the Immigration Court
or the BIA to administratively close his or
her case and the case will be administratively
closed unless the class member has been
convicted of an aggravated felony or is
subject to detention under paragraph 17.
Id. at 805. Under Paragraph 20, "[i]f the asylum application is
finally denied under the procedures set forth in this agreement,"
a case pending before an IJ shall, upon notice from the INS, be
recalendared. Id. at 806.
Under Paragraph 35,
[i]f an individual class member who has sought
the benefits or rights of this agreement
raises any claim regarding the denial of any
such right or benefit (including a dispute
over membership in the class) . . . , such
individual is entitled to seek enforcement of
the provisions hereof by initiating a separate
proceeding in any federal district court, and
the Defendants will not contest the
jurisdiction of such court to hear any such
claim . . . .
Id. at 809-10.
The crux of the Estradas' complaint is that they were not
afforded a hearing before an asylum officer or otherwise given a
chance to make their case for continued eligibility for benefits
under the ABC Agreement. They say they were deprived of due
process, because the INS reached the determination in its letter of
February 4, 1997, without giving the family notice or an
opportunity to present evidence. Because the INS' determination
that Estrada was not entitled to ABC benefits was procedurally
-17-
unsound, it amounted, the Estradas say, to "nothing" -- essentially
no determination at all -- and the IJ and BIA erred in refusing to
allow administrative closure.
The Estradas stress that none of the Paragraph 17
disqualifiers apply. Their case for eligibility is that the
"apprehended at time of entry after" December 19, 1990 provision
does not apply to them: once Estrada registered and filed an asylum
request which listed his children, they say, their "rights under
the ABC agreement were vested." In the Estradas' view, once their
rights vested, nothing in the ABC Agreement provides for the loss
of their rights simply because Estrada departed and the family
subsequently came to the United States.
The government responds that the INS determined that
Estrada was ineligible for ABC benefits, that this determination
was not reviewable by the IJ or by the BIA, see Matter of Morales,
21 I. & N. Dec. at 134-35, and that this court has no jurisdiction
to consider any of the Estradas' ABC-related challenges.8
The government says the ABC Agreement "specifically
provides for determination of [eligibility for ABC benefits] in a
district court, not pursuant to a petition for review in a court of
appeals." In the government's view, jurisdiction once existed in
8
The government argues in the alternative that if we have
jurisdiction over the issue of the Estradas' eligibility for ABC
benefits, we should find the Estradas ineligible, because they were
"apprehended at time of entry" after the cut-off date.
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the district court, but Estrada squandered his chance there by
failing to respond to the show-cause order and/or to appeal the
district court's decision. The government also stresses that the
Estradas never advised the BIA of the district court's decision,
and that they never moved to reopen while the case was pending.
The government says that in the posture of this case -- a petition
for review of the BIA's decision, and not an appeal from the
district court -- this court lacks jurisdiction to consider the
Estradas' eligibility for ABC benefits.
At oral argument, this court raised the possibility of
transferring the present ABC issue to the District Court for the
District of Rhode Island. The government opposes such a transfer
on two grounds. First, it says, the petition for review of the BIA
decision could not have been brought in the district court in the
first instance, so transfer is improper under 28 U.S.C. § 1631,
which states:
Whenever a civil action is filed in a court
. . . or an appeal, including a petition for
review of administrative action, is noticed
for or filed with . . . a court and that court
finds that there is a want of jurisdiction,
the court shall, if it is in the interest of
justice, transfer such action or appeal to any
other such court in which the action or appeal
could have been brought at the time it was
filed or noticed . . . .
28 U.S.C. § 1631 (emphasis added). The government's second
argument is that it is not "in the interest of justice" to transfer
this issue to the district court, because Estrada failed to respond
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to the show-cause order, did not appeal the district court's
decision, and did not even advise the BIA of the district court's
decision. The Estradas counter that jurisdiction in the district
court would be proper, and that transfer would be in the interest
of justice; they say they "have raised and preserved the ABC issue
throughout the course of the litigation."
We do not delve into the merits of the government's
various jurisdictional challenges on the ABC issues. Instead, we
rest on the ground that, on these facts, the petitioners have
waived consideration of the ABC issue by this court or by the
district court (even assuming a transfer).
Estrada never showed cause to the district court as to
why his case based on a claim for ABC benefits should not be
dismissed, and he never appealed the decision of the district
court. The Estradas argued before the BIA that they were entitled
to administrative closure under the ABC Agreement, noted that they
had not received a hearing before an asylum officer on the matter,
and alerted the BIA to the fact that Estrada had filed a case in
the district court. But they never told the BIA how that case was
decided or that the district court could have been viewed as
deferring the ABC issue back to the agency. They had ample
opportunity to do so.
The district court issued its memorandum and show-cause
order on September 16, 1999, and it dismissed Estrada's complaint
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for failure to show cause on October 14, 1999, but the BIA did not
decide the Estradas' appeal from the IJ's decision until April 15,
2003. The BIA did not address the proper response to the district
court's decision because it was not asked to. Cf. Xu v. Gonzales,
424 F.3d 45, 48-49 (1st Cir. 2005) (where point was not argued in
appeal from IJ's decision, BIA was under no obligation to address
point, and issue was waived and would not be considered by this
court). Rather, the Estradas chose to cause delay, which
benefitted them by keeping them in the United States. The
dismissal of Estrada's action in the district court was more than
six years ago. Estrada is not entitled to reopen it now. Taken
together, the various omissions amount to waiver, and we will
neither consider the ABC issue nor transfer it to the district
court for further proceedings.
C. Conventional Petition for Review Claims
1. Excludability as Charged
The Estradas' second line of attack goes to the IJ/BIA
determination that they were in fact excludable as charged: they
say that Estrada was not attempting a new entry and that the
government did not properly revoke their immigrant visas before
they commenced their journey to the United States. This presents
the mixed standard of review: the factual determinations are
reviewed under the substantial evidence test, see Ang v. Gonzales,
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430 F.3d 50, 54-55 (1st Cir. 2005); the BIA's interpretations of
law are reviewed with deference, see Elien, 364 F.3d at 396-97.
a. New Entry
As to the "new entry" issue, the Estradas say that once
Estrada was "accorded protected registered class status under the
ABC agreement after his initial entry in 1985, he kept that status
intact when entering the United States subsequent to the ABC
agreement preliminary approval date of December 19, 1990." The
Estradas say that in light of Estrada's status as a registered ABC
class member, his "first and only entry" was in October 1985, his
1995 arrival should not have been deemed a new entry, and the
children's status is the same. They say their situation involved
merely an "innocent, casual, and brief" departure. Rosenberg v.
Fleuti, 374 U.S. 449, 462 (1963). Whatever the merits of this
argument, the government points out that it was not raised before
the BIA. Although the Estradas clearly invoked the ABC Agreement
before the BIA, they did so only as to administrative closure, and
they did not articulate an "innocent, casual, and brief" argument
before the BIA. The argument is therefore waived. See Chen v.
Gonzales, 415 F.3d 151, 154 (1st Cir. 2005).
b. Timing of Withdrawal of Visa Petition
The Estradas also argue that because their visas were not
revoked prior to the commencement of their journey to the United
States, they should have been allowed entry, and the BIA erred in
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holding them excludable as charged.9 They say that once the
government discovered that the letter presented to the consulate
was a forgery, the appropriate response was to put the family in
deportation proceedings; they also say this would have made them
eligible for relief that was not available in exclusion
proceedings.
i. Appropriateness of Exclusion Proceedings
The Estradas base their argument on former INA § 205,
which, before the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C,
110 Stat. 3009, 3009-546 (1996), provided that revocation of the
approval of any visa petition will not have effect unless there is
notice prior to the petition beneficiary's commencement of travel
to the United States. See 8 U.S.C. § 1155 (1994). Their argument
is that the fact that withdrawal of the visa petition occurred
after their journey had commenced (and indeed, not until well after
they had been paroled into the United States) means that the
withdrawal was not valid and did not result in revocation of the
9
The Estradas' argument on excludability is based on the
statutory scheme in effect before the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, Div. C, 110 Stat. 3009, 3009-546 (1996). We use the pre-
IIRIRA versions of the statutes. See id. § 309(c)(1), 110 Stat. at
3009-625, amended by Act of Oct. 11, 1997, § 2, Pub. L. No.
104-302, 110 Stat. 3656, 3657; Goncalves v. Reno, 144 F.3d 110, 116
(1st Cir. 1998).
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approval of their visa petition, and that they should have been put
into deportation proceedings.
The Estradas' conclusion is contrary to the BIA's
reasonable interpretation of the statutory text.10 The last
sentence of § 1155 then provided that "[i]f notice of revocation is
not so given, and the beneficiary applies for admission to the
United States, his admissibility shall be determined in the manner
provided for by sections 1225 and 1226 of this title." Id. The
pre-IIRIRA versions of §§ 1225 and 1226 dealt with exclusion, not
deportation, procedures. See 8 U.S.C. §§ 1225, 1226 (1994). It
was reasonable for the BIA to conclude that the only consequence of
failure to notify before travel was that the right to admission
would be adjudicated in exclusion proceedings.
Furthermore, INA § 221(h) provided at the time that
"[n]othing in this chapter shall be construed to entitle any alien,
to whom a visa or other documentation has been issued, to enter the
United States, if, upon arrival . . . he is found to be
inadmissible." 8 U.S.C. § 1201(h) (1994). The IJ found that this
10
Both the BIA and the IJ cited the BIA's decision in Matter
of Alarcon, 17 I. &. N. Dec. 574 (BIA 1980). In that case, an
alien was held to be excludable at entry where she entered the
United States with an immigrant visa "accorded to her as the
unmarried daughter of a lawful permanent resident," although in
fact she had been married before she entered the United States.
Id. at 575. The BIA, interpreting § 1155, dismissed her appeal.
The BIA stated that "if revocation was not effective and the
beneficiary applies for admission, his admissibility is to be
determined in exclusion proceedings," id. at 576, and that
"excludability was appropriately charged," id. at 577.
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is what happened here, and quoted this exact language. The BIA
agreed with the IJ. We see no reason for overturning the BIA's
decision that exclusion proceedings were proper.
ii. Grounds of Excludability
The BIA's ultimate determination that the Estradas were
excludable was, far from being "manifestly contrary to law," based
on reasonable statutory interpretations and ample factual support.
The charged grounds of excludability were 8 U.S.C.
§ 1182(a)(5)(A)(i)11 and (a)(7)(A)(i)(I).12 The BIA reasonably
interpreted § 1155 and concluded that nothing about the timing of
P&B's withdrawal of the petition rendered the Estradas' labor
certifications or immigrant visas automatically valid. The BIA
cited its decision in Matter of Alarcon, 17 I. &. N. Dec. 574,
which rejected the argument that "since [the alien] was not
notified that her visa petition was revoked before she came to this
country, her visa petition and, therefore, her visa were still
valid." Id. at 575. Instead, the BIA said, the IJ should
11
This section then provided that "[a]ny alien who seeks to
enter the United States for the purpose of performing skilled or
unskilled labor is excludable," absent a labor certification. 8
U.S.C. § 1182(a)(5)(A)(i) (1994).
12
This section then provided that, "[e]xcept as otherwise
specifically provided in this chapter," an immigrant who at the
time of application for admission "is not in possession of a valid
unexpired immigrant visa . . . or other valid entry document
required by this chapter, and a valid unexpired passport, or other
suitable travel document, or document of identity and nationality
if such document is required [under certain regulations]," is
excludable. 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).
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"examine[] the applicant's visa to determine its validity,"
reaching a decision "inherently involv[ing] scrutiny of the
underlying visa petition and the relationship on which it depends."
Id. at 576. "If [the IJ] determines that a flaw exists in that
relationship such that the alien was not actually entitled to the
status which was accorded to him by the visa petition, the [IJ] may
conclude that the visa is invalid." Id. This can hardly be said
to be an unreasonable interpretation of the immigration statutes.
The Estradas fare no better with respect to the BIA's
factual findings and application of law to facts. The BIA agreed
with the IJ that the visas, visa petition, and labor certification
were based on fraudulent information and were invalid. Estrada
conceded that he forged the letter from P&B stating that he was
employed, and the IJ found that if the true information about
Estrada's employment situation had been submitted to the consulate,
neither the labor certification nor the employment-based visas
would have issued. We are hardly "compelled to conclude to the
contrary" on this record, and we see no basis for saying that the
decision that the Estradas were ineligible for admission to the
United States was "manifestly contrary to law." The Estradas'
theory implies that one whose fraud goes undetected for a short
while is entitled, simply because the INS did not detect the matter
right away, to enter the United States and stay here indefinitely
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with an unrevokable visa, whatever its actual invalidity. We
reject this theory.
2. Denial of Various Forms of Relief
Finally, the Estradas say that they did not voluntarily
waive their right to apply for "non-ABC" asylum, and they seek
leave to apply for this relief now. They say there is a difference
between a "defensive" asylum claim raised before an IJ and an ABC
asylum claim, and that if had they filed claims for defensive
asylum before the IJ, they "would have certainly acquiesced in the
IJ's ruling" on administrative closure and would have been waiving
their ABC claim. We see no basis for the argument.
Whether or not "defensive" asylum is different from ABC
asylum, the INS had determined that Estrada was ineligible for
benefits under the ABC Agreement, and the IJ had decided that
administrative closure was improper, in deference to the INS'
determination. The Estradas were required to seek from the IJ
whatever relief they hoped to get. Indeed, they did seek
suspension of deportation and waivers of inadmissibility. Those
forms of relief are clearly different from what the Estradas call
"ABC asylum," and it is not clear how seeking "defensive asylum,"
which the Estradas say is also different, would have been any more
of a waiver of their rights under the ABC Agreement. As the
Estradas concede, they were provided numerous opportunities to
continue to apply for asylum after they indicated at the
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commencement of their exclusion proceedings that they would be
seeking such relief, and they refused to do so.13 It was not error
for the BIA to deem the applications for asylum abandoned.14
III.
The petition for review is denied.
13
By expressly telling the IJ that he would not be pursuing
an asylum application, Estrada also effectively withdrew the
application for asylum he had filed in 1992.
14
In the September 25, 1997 proceeding before the IJ, counsel
for the petitioners also expressed hesitation in filing an asylum
application in light of the penalties for frivolous applications.
The Estradas make no argument in their petition for review as
to withholding of removal, so any such argument is waived, and in
any case fails for the abandonment reason discussed above. As
already stated, the Estradas have also waived any argument they
might have had as to suspension of deportation and waivers of
inadmissibility.
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