10‐274
Li v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2011
(Argued: September 2, 2011 Decided: February 21, 2014)
Docket No. 10‐274‐ag
________________________________________________________
FANG LI,
Petitioner,
—v.—
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES; JANET
NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY,
Respondents.
________________________________________________________
Before: KATZMANN, Chief Judge, LIVINGSTON, and CARNEY, Circuit Judges.
Petition for review of a decision of the Board of Immigration Appeals
(“BIA”) affirming the decision of the Immigration Judge (“IJ”) to deny
petitioner’s motion to reopen. The petitioner contends that her final deportation
order is invalid because she should have been placed in exclusion proceedings,
not deportation proceedings. Because, however, she concedes that she was
deportable, we hold that the BIA did not abuse its discretion in affirming the IJ’s
denial of her motion to reopen. The petition for review is DENIED.
Chief Judge KATZMANN concurs in a separate opinion.
_______________
Counsel for Petitioner Fang Li: ALAN LEE, New York, N.Y.
Counsel for Respondents: W. DANIEL SHIEH, Trial Attorney (Tony
West, Assistant Attorney General; Francis
W. Fraser, Senior Litigation Counsel, on the
brief), Office of Immigration Litigation,
Civil Division, United States Department of
Justice, Washington, D.C.
_______________
PER CURIAM:
Petitioner Fang Li, a native and citizen of the People’s Republic of China,
seeks review of a December 29, 2009 order of the BIA affirming the March 7, 2008
order of Immigration Judge (“IJ”) Alan L. Page denying her motion to reopen. In
re Fang Li, No. A070 896 796 (B.I.A. Dec. 29, 2009), aff’g No. A070 896 796 (Immig.
Ct. N.Y. City Mar. 7, 2008). On appeal, Li contends that her prior deportation
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proceedings are void ab initio because, she argues, exclusion proceedings at the
port of entry were the only appropriate procedure for determining whether she
could enter into and remain in the United States. Because, however, Li concedes
that she is deportable, we conclude that the BIA did not abuse its discretion in
affirming the IJ’s denial of Li’s motion to reopen.
I. Background
Fang Li, a native and citizen of China, entered the United States in 1993
with a false Chinese passport. She attests that after customs officials discovered
the false passport upon her arrival at JFK airport, she told them that she came to
America to seek asylum. Li was released and given papers that she was told she
could use to get a “work card.” Li then went to Chinatown and gave these
papers to an immigration service agency to obtain a work card.
In June 1993, Li applied for asylum and various other forms of relief based
on her claim that she feared persecution under Chinaʹs “one child” policy. She
reports that she was called for an asylum interview that year at which the asylum
officer did not ask her about the circumstances of her entry. She was placed into
deportation proceedings in November 1996 by an order to show cause charging
her with entering the U.S. without a valid visa or entry document, which
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rendered her deportable. In 1998, she withdrew her application for relief from
deportation and instead requested voluntary departure, thus conceding her
deportability. The IJ granted her request for voluntary departure. Li asserts that
the IJ presiding over the corresponding hearings never questioned her about the
circumstances of her entry.
Although the voluntary departure order became final in November 1998,
Li remained in the country. In February 2008, she moved before the immigration
court to reopen, claiming that she was eligible to adjust her status based on, inter
alia, (1) an I‐130 petition filed by her U.S. citizen father and (2) the emotional
hardship that her U.S. citizen daughter, who was born in 2000, would suffer if Li
were to return to China. The IJ denied this motion as untimely and declined to
exercise his authority to reopen sua sponte. In declining to reopen sua sponte, the
IJ noted the facts that Li has close family ties in the United States and that her
daughter was born after Liʹs deportation order became final, which in the IJʹs
view suggested that Li never intended to depart the United States.
Li appealed to the BIA, contending that the equities of her case favored
reopening. Significantly to the instant petition for review, in her administrative
appeal Li argued for the first time that the deportation proceedings brought
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against Li were “null and void” from the outset. In Liʹs view, under the statutory
framework applicable at the time of her entry, aliens like Li who are not
admissible at the port of entry must be placed in exclusion proceedings, not
deportation proceedings. Li further argued that the government’s placement of
her into deportation rather than exclusion procedures amounted to an error of
“jurisdictional magnitude” and therefore was not waivable. The government did
not file a responsive brief before the BIA.
In its December 29, 2009 order, the BIA adopted and affirmed the IJ’s
decision denying Liʹs motion to reopen for the purpose of applying for
adjustment of status as untimely. The BIA also rejected Li’s argument that her
deportation proceedings were void because she should have been placed in
exclusion proceedings instead of deportation proceedings. Finally, the BIA
rejected Li’s contention that the IJ should have reopened her deportation
proceedings under his sua sponte authority. Li then petitioned to this Court for
review.
II. Discussion
“This court reviews the BIAʹs decision to affirm an IJ’s denial of a motion
to reopen for abuse of discretion.” Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
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There is no dispute that Liʹs February 2008 motion to reopen was untimely
because Liʹs voluntary departure order converted into a final deportation order
when she failed to depart the United States by November 1998. See 8 U.S.C. §§
1101(a)(47), 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1); see also
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). Li has not alleged that she
meets any of the exceptions to the time and number limitations for motions to
reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii)‐(iv); 8 C.F.R. § 1003.23(b)(4).
Li nevertheless argues that her final deportation order is invalid because
she should have been placed in exclusion proceedings. Li, however, conceded to
the charge of deportability at her hearing before the IJ. She likewise did not
attempt to terminate the proceedings until filing her motion to reopen over nine
years after the deportation order became effective. See Hoodho v. Holder, 558 F.3d
184, 192‐93 (2d Cir. 2009) (stating that absent a showing of “egregious
circumstances,” an alien is bound by his attorneyʹs concession of removability).
Even assuming arguendo that Liʹs argument raises a “jurisdictional” issue
not subject to waiver, the BIA did not err in finding her challenge to be
“unavailing.” At all times applicable to Liʹs deportation proceedings, deportable
aliens included “[a]ny alien in the United States,” 8 U.S.C. § 1251(a), “who at the
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time of entry . . . was within one or more of the classes of aliens excludable by the
law existing at such time,” id. § 1251(a)(1)(A) (1994). It is undisputed that Li
lacked valid documentation to enter the United States and was therefore
excludable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994). Accordingly, the BIA
did not abuse its discretion in affirming the IJ’s denial of Li’s untimely motion to
reopen.
We have considered Li’s remaining arguments and find them to be without
merit. We note, for the record, that after this Circuit issued its decision in In re
Immigration Petitions for Review Pending in the U.S. Court of Appeals for the Second
Circuit (“Si v. Holder”), 702 F.3d 160, 160 (2d Cir. 2012), we requested that the
government review Li’s case, determine if she was likely to be deported, and
decide if her case should instead be remanded to the BIA. The government
informed us that the Department of Homeland Security’s Immigration and
Customs Enforcement component deems Li to be a “low enforcement priority.”
Although the government had raised the possibility of remand with Li’s counsel
on two separate occasions, the petitioner rejected the offer to remand to the BIA
in favor of proceeding to judgment on the merits—a rejection that is to us
unfathomable in view of the weak legal arguments presented by petitioner’s
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counsel. Following Si, we proceed to judgment where the petitioner chooses to
seek a decision on the merits rather than avail herself of the procedure Si outlines
for remand to the BIA for possible administrative closure. Because the petitioner
here asks us to decide the case on the merits, we deny the petition for review.
III. Conclusion
Accordingly, for the foregoing reasons, the petition for review is DENIED.
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KATZMANN, Chief Judge, concurring:
The remand process set forth in Si v. Holder was designed in part to
prevent the wasteful allocation of judicial resources to cases where the petitioner
is unlikely to be removed promptly. See In re Immigration Petitions for Review
Pending in the U.S. Court of Appeals for the Second Circuit (“Si v. Holder”), 702 F.3d
160, 160–61 (2d Cir. 2012). In particular, we were concerned that the thousands of
petitions for review for cases where removal was unlikely “undermine[d] the
Court’s ability to allocate effectively its limited resources and determine whether
adjudication of the petition will merely be an empty exercise tantamount to
issuing an advisory opinion.” Id. (quotation marks omitted). Under the
procedures worked out in Si, an “interested petitioner” has to agree to remand
her case to the BIA for the possible exercise of prosecutorial discretion and
administrative closure. Id. at 161–62 (explaining how petitioner could move to
dismiss the petition in favor of remand pursuant to Fed. R. App. Proc. 42(b)). By
all accounts, the Si process has worked well for petitioners, the government, and
this Court.
Accordingly, following the procedures contemplated by Si, we address the
merits in this case because the petitioner has chosen not to avail herself of the
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possibility for administrative closure and the government, in light of the
petitioner’s position, feels compelled to ask us to resolve the case. Our opinion is
in all likelihood akin to an advisory opinion, because the government has told us
that there is little chance Ms. Li will actually be removed from this country. In Si
we declined to decide, “for the time being, the question of our inherent power to
remand cases to the BIA as an exercise of our authority to manage the Court’s
affairs.” Id. at 161. This case suggests that the time may well have arrived to
consider whether such authority exists, at least with respect to cases in the
unusual posture this one is.
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