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12-4096 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term, 2012 6 7 8 (Decided October 16, 2012) 9 10 Docket No. 12-4096 11 12 13 -----------------------------------------------------------X 14 15 IN THE MATTER OF IMMIGRATION PETITIONS FOR REVIEW 16 PENDING IN 17 THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 18 19 -----------------------------------------------------------X 20 21 22 23 DENNIS JACOBS, Chief Judge: 24 25 On August 9, 2012, in Si v. Holder, Number 11-1787, the 26 judges in active service constituted an in banc panel for 27 the purpose of reviewing the Joint Stipulation filed on June 28 11, 2012, to hold the Si case in abeyance for an indefinite 29 period. Also on August 9, 2012, the Court issued an Order 30 to Show Cause, directing the parties in Si to address “why 31 this Court should not remand this appeal to the Board of 32 Immigration Appeals [hereinafter the “BIA”] until such time 33 as the Government has determined that it will seek to remove 34 petitioners in the foreseeable future.” The parties also 1 were directed to address “whether this Court possesses the 2 inherent power to order remands of that kind with the 3 consent of petitioners only, in order to protect our 4 proceedings and judgments, control our docket, and 5 effectively allocate judicial resources.” 6 In addition to their respective responses to the Order 7 to Show Cause, the parties submitted on August 31, 2012 a 8 second joint stipulation to remand the case to the BIA for 9 administrative closure. By order issued this date under the 10 caption Si v. Holder, Number 11-1787, the Court so ordered 11 the August 31, 2012 Joint Stipulation and dismissed the 12 appeal according to the stipulation’s terms. 13 14 I 15 The June 11, 2012 Stipulation recites that, “[u]pon 16 review of this case, the Department of Homeland Security’s 17 Immigration and Customs Enforcement (DHS/ICE) component has 18 determined in its sole and unreviewable discretion that this 19 case is a low priority removal case and, therefore, under 20 the present circumstances, the petitioner will not be 21 removed in the foreseeable future.” See Memorandum from 22 John Morton, ICE Dir., to All Field Office Dirs., All 2 1 Special Agents in Charge, All Chief Counsel, Exercising 2 Prosecutorial Discretion Consistent with the Civil 3 Immigration Enforcement Priorities of the Agency for the 4 Apprehension, Detention, and Removal of Aliens (June 17, 5 2011) [hereinafter the “Morton Memorandum”]. 6 In banc review of the June 11, 2012 Stipulation was 7 needed. Si is one of more than a thousand cases in our 8 Court that are actually or potentially subject to a future 9 decision by the Government as to whether it will or can 10 remove petitioners if their petitions are denied.1 As we 11 have previously observed, it is wasteful to commit judicial 12 resources to immigration cases when circumstances suggest 13 that, if the Government prevails, it is unlikely to promptly 14 effect the petitioner’s removal.2 1 We have been advised that, in many cases, removal following denial of a petition for review is not accomplished because the Government cannot obtain travel documents. The difficulty the Government often encounters in effectuating removal is reflected in the submission to us of numerous petitions to review a denial of a motion to reopen, some filed as many as twelve years after our Court denied a petition to review an initial denial of relief. 2 See, e.g., Wei Hua Wang v. Holder, No. 09-2678-ag (2d Cir. Sept. 18, 2009) (order to file supplemental memorandum); Zhihui Dong v. Holder, No. 09-2154-ag (2d Cir. Sept. 18, 2009) (same); Yuan Zee Huang v. Holder, No. 09- 2505-ag (2d Cir. Sept. 18, 2009) (same); Nen Di Wu v. Holder, No. 09-2564-ag (2d Cir. Sept. 17, 2009) (same). 3 1 This state of affairs undermines the Court’s ability to 2 “allocate effectively its limited resources and determine 3 whether adjudication of the petition will be merely an empty 4 exercise tantamount to issuing an advisory opinion.” Ping 5 Li v. Holder, No. 08-2917-ag (2d Cir. Sept. 22, 2009) (order 6 to file supplemental memorandum). The certified record on 7 appeal contains insufficient information for the Court to 8 see whether a given case might fall within the ambit of the 9 Morton Memorandum. We therefore cannot organize our docket 10 to best allocate our own resources. At the time the June 11 11, 2012 Stipulation was filed, Si already had been before 12 us once; and on its return, it had been pending for more 13 than a year. Considerable resources--on the part of the 14 Court and the parties--had been invested in the case. It 15 is not lost on us that the executive’s (appropriate) wish to 16 conserve its own scarce resources is what impels the 17 Government in Si to seek remand to the Board of Immigration 18 Appeals. 19 In their responses to the Order to Show Cause, 20 Petitioners Si and Nyo and the Government agree that remand 21 to the Board of Immigration Appeals is appropriate when the 4 1 Government elects to suspend, at least temporarily, 2 proceedings against a petitioner. Representatives of the 3 Department of Justice and the Department of Homeland 4 Security also expressed that view at the conclusion of 5 recent policy discussions with members of the Court 6 regarding the application of the Morton Memorandum to cases 7 that reach this Court. 8 The Government’s position and understanding is as 9 follows: “[W]hen the Office of Immigration Litigation 10 (“OIL”) determines in consultation with ICE that a case is a 11 low priority matter, the assigned OIL attorney will seek 12 remand for administrative closure. . . . To the extent there 13 are other cases . . . that are not low priority cases under 14 ICE guidelines but where the likelihood of removal may be 15 low for other reasons (such as the difficulty in effecting 16 removals to particular countries), the government is 17 amenable to developing a procedure . . . that would address 18 the Court’s expressed concerns for docket control and 19 efficient allocation of judicial resources.” Si v. Holder, 20 Number, 11-1787, Respondent’s Letter Brief in Response to 5 1 Order to Show Cause (August 30, 2012), p.3. 2 We agree. This opinion sets out a procedure for all 3 immigration cases pending in this Court that will enable an 4 interested petitioner and the Government to evaluate whether 5 remand to the BIA, according to terms specified below, is 6 appropriate. In so ruling we need not reach, for the time 7 being, the question of our inherent power to remand cases to 8 the BIA as an exercise of our authority to manage the 9 Court’s affairs. See Degen v. United States, 517 U.S. 820, 10 823 (1996); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 267 (2d 11 Cir. 2007). 12 13 II 14 In each case in which a certified record on appeal has 15 been filed, the Court will issue an order tolling the 16 upcoming event to be performed in the case for a 90-day 17 period for the parties to determine whether remand to the 18 BIA is appropriate in the case. At any time during the 19 tolled period, either party may end the tolling and resume 20 the appellate process by filing with the Clerk of Court a 21 letter to that effect with service upon the adversary. 6 1 Three business days after the date of the letter, time will 2 begin to run for the next event that is due to occur in the 3 case under the Federal Rules of Appellate Procedure or the 4 Court’s Local Rules. 5 At any time prior to the end of the tolled period, a 6 petitioner may move under FRAP 42(b) to dismiss the petition 7 and remand to the BIA. 8 If neither party has sought to resume the appellate 9 process for any purpose by the close of business on the day 10 the 90-day tolling period ends (or the next business day if 11 the tolling period ends on a weekend or holiday), time will 12 immediately resume running for the next event that is due to 13 occur in the case. A motion for an extension of time, 14 whether to continue remand discussions or to postpone an 15 imminent deadline in the case, will be disfavored and 16 subject to a showing of extraordinary circumstances. See 17 Local Rule 27.1(f)(1). 18 Except for cases submitted to a panel for decision at 19 least 90 days prior to the date of this decision, the Court 20 will not issue a decision until after the 90-day tolling 7 1 period unless requested to do so by one of the parties. 2 3 III 4 When granting a motion to dismiss an appeal under FRAP 5 42(b) and remand to the BIA, we are mindful that it is the 6 petitioner who has sought judicial review, and who is secure 7 from removal during the pendency of the case before the 8 Court. To ensure an opportunity for prompt restoration of 9 this case to our jurisdiction as the petitioners may wish, a 10 remand will be pursuant to the principles and procedures set 11 out in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994). 12 While a petition is pending in this Court, the 13 Government’s forbearance policy has assured that removal 14 will not occur. We will assume that forbearance will 15 continue while the case remains with the agency following 16 our remand and during its return to this Court, if that 17 should occur. In the event that the Court and a petitioner 18 are advised at any time that this assumption is unwarranted, 19 the petitioner may promptly apply for a stay of removal. 20 At the time a remand is ordered, the Clerk of Court 21 will issue the mandate in compliance with the Federal Rules 22 of Appellate Procedure, with the stated condition that 8 1 either party may reinstate the case in this Court at any 2 time by filing a letter to that effect with the Clerk of 3 Court. No new petition for review or additional filing fee 4 will be required to restore the Court’s jurisdiction. 5 If the Government decides to resume efforts to remove a 6 petitioner, the Government will notify both the Court and 7 Petitioner at least 21 days before removing Petitioner. 8 Upon receipt of the notice, the Clerk of Court will 9 reinstate the case. 10 In all pending immigration cases and, until further 11 notice, in all subsequently filed immigration cases, the 12 Clerk of Court is directed to issue an order consistent with 13 this decision on a rolling basis commencing seven days from 14 this date. 15 9