In the Matter of Immigration, No. 12-4096 (2d Cir. 2012)

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Justia Opinion Summary

This opinion sets out a procedure for all immigration cases pending in this Court that will enable an interested petition and the Government to evaluate whether remand to the BIA, according to terms specified, is appropriate.

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12-4096 In the Matter of Immigration UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -----------------------------------------------------------X 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. 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 August Term, 2012 (Decided October 16, 2012) Docket No. 12-4096 IN THE MATTER OF IMMIGRATION PETITIONS FOR REVIEW PENDING IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT -----------------------------------------------------------X DENNIS JACOBS, Chief Judge: On August 9, 2012, in Si v. Holder, Number 11-1787, the Also on August 9, 2012, the Court issued an Order 1 petitioners in the foreseeable future. 2 were directed to address whether this Court possesses the 3 inherent power to order remands of that kind with the 4 consent of petitioners only, in order to protect our 5 proceedings and judgments, control our docket, and 6 effectively allocate judicial resources. 7 The parties also In addition to their respective responses to the Order 8 to Show Cause, the parties submitted on August 31, 2012 a 9 second joint stipulation to remand the case to the BIA for 10 administrative closure. By order issued this date under the 11 caption Si v. Holder, Number 11-1787, the Court so ordered 12 the August 31, 2012 Joint Stipulation and dismissed the 13 appeal according to the stipulation s terms. 14 15 16 I The June 11, 2012 Stipulation recites that, [u]pon 17 review of this case, the Department of Homeland Security s 18 Immigration and Customs Enforcement (DHS/ICE) component has 19 determined in its sole and unreviewable discretion that this 20 case is a low priority removal case and, therefore, under 21 the present circumstances, the petitioner will not be 22 removed in the foreseeable future. 2 See Memorandum from 1 John Morton, ICE Dir., to All Field Office Dirs., All 2 Special Agents in Charge, All Chief Counsel, Exercising 3 Prosecutorial Discretion Consistent with the Civil 4 Immigration Enforcement Priorities of the Agency for the 5 Apprehension, Detention, and Removal of Aliens (June 17, 6 2011) [hereinafter the Morton Memorandum ]. 7 In banc review of the June 11, 2012 Stipulation was 8 needed. Si is one of more than a thousand cases in our 9 Court that are actually or potentially subject to a future 10 decision by the Government as to whether it will or can 11 remove petitioners if their petitions are denied.1 12 have previously observed, it is wasteful to commit judicial 13 resources to immigration cases when circumstances suggest 14 that, if the Government prevails, it is unlikely to promptly 15 effect the petitioner s removal.2 As we 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. 093 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. 5 Li v. Holder, No. 08-2917-ag (2d Cir. Sept. 22, 2009) (order 6 to file supplemental memorandum). 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. Ping The certified record on We therefore cannot organize our docket 10 to best allocate our own resources. 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. 14 Court and the parties--had 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 20 At the time the June Considerable resources--on the part of the been invested in the case. It In their responses to the Order to Show Cause, Petitioners Si and Nyo and the Government agree that remand 2505-ag (2d Cir. Sept. 18, 2009) (same); Nen Di Wu v. Holder, No. 09-2564-ag (2d Cir. Sept. 17, 2009) (same). 4 1 to the Board of Immigration Appeals is appropriate when the 2 Government elects to suspend, at least temporarily, 3 proceedings against a petitioner. 4 Department of Justice and the Department of Homeland 5 Security also expressed that view at the conclusion of 6 recent policy discussions with members of the Court 7 regarding the application of the Morton Memorandum to cases 8 that reach this Court. 9 Representatives of the The Government s position and understanding is as 10 follows: [W]hen the Office of Immigration Litigation 11 ( OIL ) determines in consultation with ICE that a case is a 12 low priority matter, the assigned OIL attorney will seek 13 remand for administrative closure. . . . To the extent there 14 are other cases . . . that are not low priority cases under 15 ICE guidelines but where the likelihood of removal may be 16 low for other reasons (such as the difficulty in effecting 17 removals to particular countries), the government is 18 amenable to developing a procedure . . . that would address 19 the Court s expressed concerns for docket control and 20 efficient allocation of judicial resources. 5 Si v. Holder, 1 Number, 11-1787, Respondent s Letter Brief in Response to 2 Order to Show Cause (August 30, 2012), p.3. 3 We agree. This opinion sets out a procedure for all 4 immigration cases pending in this Court that will enable an 5 interested petitioner and the Government to evaluate whether 6 remand to the BIA, according to terms specified below, is 7 appropriate. 8 being, the question of our inherent power to remand cases to 9 the BIA as an exercise of our authority to manage the In so ruling we need not reach, for the time 10 Court s affairs. See Degen v. United States, 517 U.S. 820, 11 823 (1996); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 267 (2d 12 Cir. 2007). 13 14 15 II In each case in which a certified record on appeal has 16 been filed, the Court will issue an order tolling the 17 upcoming event to be performed in the case for a 90-day 18 period for the parties to determine whether remand to the 19 BIA is appropriate in the case. 20 tolled period, either party may end the tolling and resume 21 the appellate process by filing with the Clerk of Court a 6 At any time during the 1 letter to that effect with service upon the adversary. 2 Three business days after the date of the letter, time will 3 begin to run for the next event that is due to occur in the 4 case under the Federal Rules of Appellate Procedure or the 5 Court s Local Rules. 6 At any time prior to the end of the tolled period, a 7 petitioner may move under FRAP 42(b) to dismiss the petition 8 and remand to the BIA. 9 If neither party has sought to resume the appellate 10 process for any purpose by the close of business on the day 11 the 90-day tolling period ends (or the next business day if 12 the tolling period ends on a weekend or holiday), time will 13 immediately resume running for the next event that is due to 14 occur in the case. 15 whether to continue remand discussions or to postpone an 16 imminent deadline in the case, will be disfavored and 17 subject to a showing of extraordinary circumstances. 18 Local Rule 27.1(f)(1). A motion for an extension of time, See 19 Except for cases submitted to a panel for decision at 20 least 90 days prior to the date of this decision, the Court 7 1 will not issue a decision until after the 90-day tolling 2 period unless requested to do so by one of the parties. 3 III 4 5 When granting a motion to dismiss an appeal under FRAP 6 42(b) and remand to the BIA, we are mindful that it is the 7 petitioner who has sought judicial review, and who is secure 8 from removal during the pendency of the case before the 9 Court. To ensure an opportunity for prompt restoration of 10 this case to our jurisdiction as the petitioners may wish, a 11 remand will be pursuant to the principles and procedures set 12 out in United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994). 13 While a petition is pending in this Court, the 14 Government s forbearance policy has assured that removal 15 will not occur. 16 continue while the case remains with the agency following 17 our remand and during its return to this Court, if that 18 should occur. 19 are advised at any time that this assumption is unwarranted, 20 the petitioner may promptly apply for a stay of removal. 21 At the time a remand is ordered, the Clerk of Court 22 We will assume that forbearance will In the event that the Court and a petitioner will issue the mandate in compliance with the Federal Rules 8 1 of Appellate Procedure, with the stated condition that 2 either party may reinstate the case in this Court at any 3 time by filing a letter to that effect with the Clerk of 4 Court. 5 will be required to restore the Court s jurisdiction. 6 No new petition for review or additional filing fee If the Government decides to resume efforts to remove a 7 petitioner, the Government will notify both the Court and 8 Petitioner at least 21 days before removing Petitioner. 9 Upon receipt of the notice, the Clerk of Court will 10 reinstate the case. 11 In all pending immigration cases and, until further 12 notice, in all subsequently filed immigration cases, the 13 Clerk of Court is directed to issue an order consistent with 14 this decision on a rolling basis commencing seven days from 15 this date. 16 9