Afzal Hussain v. Alberto R. Gonzales, Attorney General

HAMILTON, Senior Circuit Judge,

dissenting:

I have two main points of disagreement with the majority opinion. First, I disagree with the majority opinion’s failure to *159remand this case to the Board for issuance of a clarifying order. In my view, the Board’s November 14, 2005 decision (the Board’s Final Decision) is sufficiently ambiguous regarding whether the Board ruled upon Hussain’s July 19, 2005 motion to remand (Hussain’s Motion to Remand) that granting Hussain’s petition for review and remanding the case to the Board with instructions to issue a clarifying order is required and mandated. Second, assuming arguendo, that the Board did not rule on Hussain’s Motion to Remand as the majority opinion concludes, I disagree with the majority opinion’s decision to address such motion on the merits in the first instance. In so addressing, the majority opinion oversteps our review authority. Accordingly, I respectfully dissent.

I.

Before addressing in detail my points of disagreement with the majority opinion, the Board deserves to be rebuked for issuing a final decision in which we, as the reviewing court, cannot readily discern whether the Board even ruled upon a particular motion pending before it. Immigration law, in and of itself, is complicated and confusing enough that we should not be thrown into debate at the federal appellate level regarding what action the Board actually took.

Turning to my first main point of disagreement with the majority opinion, a careful reading of the record and the Board’s Final Decision shows that the majority opinion’s conclusion that the Board failed to dispose of Hussain’s Motion to Remand is just a reasoned guess or mere speculation. The truth is that we really do not know whether the Board intended to dispose of Hussain’s Motion to Remand in its Final Decision. Indeed, the government candidly conceded at oral argument that the Board’s Final Decision is ambiguous on the point.

I disagree with the majority opinion’s choice to discern from the indiscernible whether the Board ruled upon Hussain’s Motion to Remand. The prudent course, in this wholly ambiguous situation with which we find ourselves confronted, is to remand the case to the Board with instructions for the Board to issue a clarifying order. Specifically, I would instruct the Board to clarify whether it had ruled upon Hussain’s Motion to Remand in its Final Decision in denying the second-mentioned motion to reopen. If it had so ruled, I would instruct the Board to clarify its reason or reasons for so ruling. If it had not so ruled, I would instruct the Board to rule on the motion and to express its reason or reasons for so ruling.

II.

My second main point of disagreement with the majority opinion concerns the majority opinion’s decision to address the merits of Hussain’s Motion to Remand. After the majority opinion concludes that the Board did not rule on Hussain’s Motion to Remand, the majority opinion takes the extraordinary step of addressing such motion on the merits in the first instance. According to the majority opinion, remand to the Board for a ruling in the first instance would serve no useful purpose because, based upon the record, Hussain is unable to establish a prima facie case for adjustment of status. Notably, the majority opinion takes pains to stress that its conclusion that Hussain is unable to establish a prima facie case for adjustment of status “is a legal, not a factual, conclusion.” Ante at 158.

Significantly, the majority opinion’s decision to address the merits of Hussain’s Motion to Remand in the first instance violates the ordinary remand rule as re*160cently reiterated and applied in the Supreme Court’s immigration decisions in INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) and Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam).

In Ventura, the Ninth Circuit had addressed and rejected an argument by the government that political conditions in Guatemala had improved to the point that political persecution was no longer likely in Guatemala. Ventura, 537 U.S. at 13, 123 S.Ct. 353. The Board had not addressed the issue. Id. The Supreme Court reversed the Ninth Circuit insofar as it had denied remand to the Board. In so reversing, the Supreme Court applied the ordinary remand rule, which rule provides that, in reviewing the decision of an administrative agency, “[a] court of appeals is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry. Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Id. at 16, 123 S.Ct. 353 (internal citations and quotation marks omitted). As rationale for the ordinary remand rule, the Court explained that the administrative “agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later to determine whether its decision exceeds the leeway that the law provides.” Id. at 17, 123 S.Ct. 353. The Court held that the Ninth Circuit should have applied the ordinary remand rule, and therefore, had erred by deciding the “changed circumstances” issue “without giving the [Board] the opportunity to address the matter in the first instance.” Id. at 17, 123 S.Ct. 353.

In Thomas, the Supreme Court addressed whether the Ninth Circuit had erred in considering, in the first instance, whether a given group of persons fell within the statutory term “particular social group” under § 101(a)(42)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(42)(A), when the Board had not formally considered such question. Thomas, 126 S.Ct. at 1614. Applying the ordinary remand rule, the Court held that the Ninth Circuit had again usurped the relevant administrative agency’s role by making basic asylum eligibility decisions. Thomas, 126 S.Ct. at 1615. The Board had yet to consider whether “Boss Ronnie’s family presents the kind of ‘kinship ties’ that constitute a ‘particular social group,’ ” which “matter,” the Court stated, “requires determining the facts and deciding whether the facts as found fall within a statutory term.” Id. The Supreme Court, therefore, vacated and remanded, holding that, absent “special circumstances” not present in that case, the relevant administrative agency must first opine on issues about which it has expertise prior to appellate review. Id.

In addressing Hussain’s Motion to Remand on the merits in the first instance, the majority opinion attempts to rely upon a distinction between factual and legal issues. The majority opinion states that in discussing the ordinary remand rule in Ventura and Thomas, “[t]he Supreme Court did not speak to whether the [federal] appellate courts have authority to review in the first instance statutory issues .... ” Ante at 158. Therefore, the majority opinion reasons, Ventura and Thomas present no bar to our court, in the first instance, denying Hussain’s Motion to Remand based upon a legal ruling. Ante at 158-59.

In my view, the majority opinion misreads Ventura and Thomas. The issues *161remanded in Ventura and Thomas both involved factual and legal aspects. In Ventura, the “changed circumstances” issue called not only for the Board’s review of evidence in the record, but for the Board’s application of the law to the facts, Ventura, 537 U.S. at 16-17, 123 S.Ct. 353. Such application of the law to the facts brings into play the Board’s conferred interpretative expertise in the field of immigration law, INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that Chevron deference applies to the Board based on the statutory allocation of power laid out by Congress in the INA); see also 8 C.F.R. § 1003.1(d) (“[T]he Board, through precedent decisions, shall provide clear and uniform guidance to the Service, the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations.”). Similarly, the issues remanded in Thomas called for the Board’s review of the evidence in the record as well as the Board’s exercise of its conferred interpretive expertise in the field of immigration law. Thomas, 126 S.Ct. at 1615 (“The agency has not yet considered whether Boss Ronnie’s family presents the kind of ‘kinship ties’ that constitute a ‘particular social group.’ The matter requires determining the facts and deciding whether the facts as found fall within a statutory term.”).

Here, by addressing the merits of Hus-sain’s Motion to Remand in the first instance, the majority opinion, just as the Ninth Circuit erroneously did in Venhvra and Thomas, usurps the authority of the Board to rule on an issue of immigration law in the first instance, ie., whether Hus-sain is eligible under the INA for the relief he seeks. Moreover, as a plain reading of the majority opinion makes clear, Hus-sain’s Motion to Remand requires review of the evidentiary record in this case and resolution of factual issues, such as whether Hussain was admitted into the United States. Ante at 158-59. There is nothing in the circumstances of the instant case which suggest that this case presents “rare circumstances” justifying exception from the ordinary remand rule. Ventura, 537 U.S. at 16, 123 S.Ct. 353. For example, Hussain has not expressly conceded on appeal before us that he is ineligible for the relief he seeks in his Motion to Remand.

Perhaps the most troubling aspect of the majority opinion is that one cannot tell from reading it upon what legal authority the majority opinion based its refusal to remand this case to the Board. In fact, the majority opinion does not cite a single case in which a federal court of appeals has refused to remand a case to the Board under similar circumstances post -Ventura and Thomas.

To summarize, the Supreme Court made quite clear in Ventura and Thomas that a federal appellate court should remand legal and factual issues of immigration law not previously addressed by the Board to the Board for resolution in the first instance except in “rare circumstances.... ” Ventura, 537 U.S. at 16, 123 S.Ct. 353. The majority opinion’s decision not to remand this case to the Board for the Board to rule on Hussain’s Motion to Remand in the first instance creates an exception to the ordinary remand rule that swallows the rule.

III.

In conclusion, I disagree with the majority opinion’s disposition in this case. Instead of denying Hussain’s petition for review as the majority opinion does, I would grant the petition for review and remand the case to the Board for issuance of a clarifying order as detailed above. Accordingly, I dissent.