2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-14-2008

Vakker v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-1949

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Vakker v. Atty Gen USA" (2008). 2008 Decisions. Paper 1346.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1346
PRECEDENTIAL

IN THE UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 06-1949

 

 BORIS VAKKER

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

Respondent

 

On Petition for Review of an Order of the Board of 

Immigration Appeals

No. A79-014-570

Immigration Judge: Hon. Walter A. Durling

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 12, 2008

BEFORE: SLOVITER, SMITH and STAPLETON,

Circuit Judges

(Opinion Filed: March 14, 2008)
2

Sandra L. Green

2 Floor nd

2001 East Market Street

York, PA 17402

 Attorney for Petitioner

Peter D. Keisler

Douglas E. Ginsburg

John D. Williams

Lyle D. Jentzer

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Attorneys for Respondent

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

In the course of removal proceedings brought against him

by the Immigration and Naturalization Service, Boris Vakker, a

“paroled” alien, requested that the Immigration Judge (“IJ”)

permit him to renew a previously denied application for

adjustment of status. The IJ denied the request. While the

proceedings were on appeal to the Board of Immigration
3

Appeals (“BIA”), Vakker filed a motion with the BIA to remand

his case to the IJ for reconsideration of the adjustment of status

issue predicated upon an intervening case of this court. The

BIA denied the motion to remand, and Vakker petitions this

court for review of that ruling. For the reasons that follow, we

will deny the petition.

I

Petitioner, a native of Russia, initially arrived in the

United States after being granted “parole” status. 8 U.S.C. §

1182(d)(5). He then applied for adjustment of status. 8 U.S.C.

§ 1255; 8 C.F.R. 245.7. However, while that application was

pending, he was convicted of conspiracy to commit alien

smuggling. His conviction rendered him ineligible for

adjustment of status, 8 U.S.C. § 1182(a)(6)(E), and the

Immigration and Naturalization Service (“INS”), now the

Department of Homeland Security’s Citizen and Immigration

Services (“CIS”), therefore denied his application. 

Following his conviction, the INS served petitioner with

a Notice to Appear, charging him with removability on three

grounds: conviction of a crime involving moral turpitude, lack

of entry documents, and alien smuggling. See 8 U.S.C. §§

1182(a)(2)(A)(i)(I), 1182(a)(7)(A)(i)(I), 1182(a)(6)(E)(i). The

IJ found him removable. Petitioner sought asylum, withholding

of removal and protection under the Convention Against Torture

(“CAT”). Petitioner also sought to renew his application for

adjustment of status. 

The IJ determined that petitioner qualified for
 8 C.F.R. § 1245.1(c)(8) has since been replaced with an 1

unrelated regulation. 

4

withholding of removal. The IJ, however, denied petitioner’s

request to renew his adjustment of status application because, it

concluded, then-applicable regulations precluded all “paroled”

aliens from seeking adjustment of status, 8 C.F.R. §

1245.1(c)(8) (repealed May 12, 2006), invalidated by Zheng v.

Gonzales, 422 F.3d 98 (3d Cir. 2005), and the IJ therefore 1

lacked jurisdiction over such an application. 

The Attorney General appealed the IJ’s decision granting

petitioner withholding of removal to the BIA. Petitioner did not

initially appeal the IJ’s denial of his request to renew his

“adjustment of status” application; however, after this court’s

ruling in Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005), which

invalidated the regulation on which the IJ had relied, petitioner

filed a motion with the BIA to remand the proceedings to the IJ

for reconsideration of his request to renew his “adjustment of

status” application. 

The BIA issued a decision in which it dismissed the

Attorney General’s appeal because it agreed with the IJ that

petitioner is eligible for withholding of removal. In the same

decision, the BIA also denied petitioner’s motion to remand on

the “adjustment of status” issue. The BIA acknowledged that

Zheng invalidated the authority upon which the IJ had relied.

However, the BIA ruled that petitioner was nevertheless

ineligible to renew his adjustment of status application “because

he [did] not meet the renewal requirements under 8 C.F.R. §
5

1245.2(a).” A.R. at 11. 

Vakker petitions this court for review of the BIA’s denial

of his motion to remand.

II

This court generally reviews motions to remand

deportation proceedings, like motions to reopen or reconsider,

for abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 292,

279-83 (3d Cir. 2005); Shardar v. Attorney General, 503 F.3d

308, 311-12 (3d Cir. 2007). However, this court’s review of the

legal standards that the BIA applied when it denied Vakker’s

motion to remand is de novo: “questions of law, such as whether

the BIA applied the correct legal standard in considering the

motion to reopen and the underlying [legal] claim . . . are []

reviewed de novo.” Fadiga v. Attorney General, 153-54 (3d

Cir. 2007). See also Cabrera-Perez v. Gonzales, 456 F.3d 109,

115 (3d Cir. 2006).

III

Vakker asserts that, following Zheng, he is facially

eligible to renew his adjustment of status application, and that

the BIA’s decision denying his motion to remand on that issue

was inadequate and denied him due process of the law. The

Attorney General raises a jurisdictional challenge to Vakker’s

petition, which we will address before reaching the merits of

Vakker’s claims.

A
 The BIA remanded the petition to the IJ in accordance with 2

8 C.F.R § 1003.1(d)(6) and 8 C.F.R. § 1003.47(h). App. at 11.

6

The Attorney General argues that Vakker’s petition for

review was untimely. Pursuant to 8 U.S.C. § 1252(b)(1), “a

petition for review must be filed not later than thirty days after

the date of the final order of removal.” We have jurisdiction

over Vakker’s petition under 8 U.S.C. § 1252(a)(1) and §

1252(b)(2) only if the petition was timely. See Stone v. I.N.S.,

514 U.S. 386, 405 (1995) (“[j]udicial review provisions . . . are

jurisdictional in nature”). We conclude that the petition was

timely.

The BIA’s February 14, 2006, “decision and order”

resolved several issues and concluded with three “orders”: one

denying Vakker’s motion to remand, one dismissing the

Attorney General’s appeal, and one remanding the proceedings

to the IJ for certain identity and background checks that are a

prerequisite to the entry of any order granting withholding of

removal. Upon completion of those checks, the IJ issued a final 2

order on March 13, 2006, granting Vakker withholding of

removal. Vakker filed his petition for review on March 17,

2006. App. at 2. Therefore, his petition was untimely if the

BIA’s decision was the pertinent “final order,” and it was timely

if the IJ’s order upon remand was the “final order.” 

Ordinarily, when the BIA remands removal proceedings

to the IJ pursuant to 8 C.F.R. §§ 1003.47(h), the “final order” in

the removal proceedings is the IJ’s order following remand. In
 The regulations themselves are fairly clear in this regard. 3

For example, 8 C.F.R §. 1003.1(d)(6), provides:

[t]he Board shall not issue a decision affirming or

granting to an alien an immigration status, relief

or protection from removal, or other immigration

benefit, as provided in 8 C.F.R. § 1003.47(b), that

requires completion of identity, law enforcement

or security investigations or examinations if:

(A) identity, law enforcement or security

investigations or examinations have not been

completed during the proceedings; . . .

8 C.F.R. §1003.1(d)(6)(i)(A) (emphasis added). Similarly, §

1003.47 provides as follows:

(h) Adjudication upon remand from the Board. In

any case remanded pursuant to 8 C.F.R.

§1003.1(d)(6), the immigration judge shall

consider the results of the identity, law

enforcement or security investigations or

examinations . . . . The immigration judge shall

then enter an order granting or denying the

immigration relief sought.

8 C.F.R. § 1003.47(h) (emphasis added). 

7

re Fabricio Alcantara-Perez, 23 I. & N. Dec. 882 (B.I.A. Feb.

23, 2006). The Attorney General argues, however, that the 3

various orders in the BIA’s February 14, 2006, decision became
8

“final” at different times: that the BIA’s order denying

Vakker’s motion to remand was a “final order,” even if

Vakker’s removal proceedings became final later, in the IJ’s

March 13 order. We do not interpret the proceedings in that

manner.

Certainly, orders denying motions to remand, like orders

denying motions to reopen or reconsider, can qualify as

independent final orders over which this court can, in

appropriate circumstances, assume jurisdiction. See Korytnyuk

v. Ashcroft, 396 F.3d 292, 279-83 (3d Cir. 2005); Shardar v.

Attorney General, 503 F.3d 308, 311-12 (3d Cir. 2007); Cruz v.

Attorney General, 452 F.3d 240, 246 (3d Cir. 2006); Sevoian v.

Ashcroft, 290 F.3d 166, 169-75 (3d Cir. 2002). Indeed, this

court has stated that:

we can independently review the denial of a

motion to reopen or reconsider . . . [and] a proper

petition for review must be filed within [the

appropriate time] of the specific order sought to

be reviewed.

Alleyne v. I.N.S., 879 F.2d 1177, 1180 (3d Cir. 1989) (emphasis

in original; internal quotation omitted). However, these cases do

not establish that an order denying a motion to remand

necessarily becomes “final” immediately, irrespective of the

status of the proceedings in which it is entered.

8 C.F.R. § 1003.2(c)(4) provides: “A motion to reopen

a decision rendered by an Immigration Judge . . . that is filed

while an appeal is pending before the Board, may be deemed a
9

motion to remand for further proceedings before the

Immigration Judge . . . from whose decision the appeal was

taken. Such motion may be consolidated with, and considered

by the Board in connection with, the appeal to the Board.” Id.

(emphasis added).

Here, the BIA chose to consolidate petitioner’s motion to

remand with the Attorney General’s appeal of Vakker’s removal

proceedings rather than to entertain that motion as an

independent proceeding. It issued just one decision which

addressed both the Attorney General’s appeal and Vakker’s

motion. This was, of course, not surprising given that petitioner

had originally raised both issues – relief from deportation, and

renewal of his adjustment of status application – in the same

hearings before the IJ, and the IJ had addressed both issues in

those hearings. Petitioner presented the “adjustment of status”

issue to the BIA in a motion to remand rather than in a

traditional appeal only because the motion relied on intervening

case law published after the IJ issued his original decision.

Therefore, the two issues had in fact been considered and

addressed jointly both by the IJ and by the BIA. As a result of

the BIA’s consolidation of these matters, it follows that its

February 14, 2006, order did not finally adjudicate all issues in

the proceeding in which it was entered and was therefore not a

final order. 

The Attorney General identifies no authority indicating

that the pertinent judicial review provisions operated to render

the BIA’s orders “final” at different times under the

circumstances of this case, and we find none. The Attorney

General relies on Popal v. Alberto Gonzales, 416 F.3d 249 (3d
10

Cir. 2005). That case is inapposite: it concerned exhaustion

rather than what constitutes a “final order,” and its reasoning

does not support the notion that there were multiple “final

orders” in this case. The most sensible interpretation of 8

U.S.C. § 1252(b)(1) in this case is that the consolidated

proceedings became “final” at the same time. As the BIA has

explained, once the BIA determines that an alien is “eligible for

the relief requested” and remands the deportation proceeding to

the IJ for the requisite background checks, the IJ’s ensuing order

“granting relief . . . then becomes the final administrative order

in the case.” In re Fabricio Alcantara-Perez, 23 I. & N. Dec. at

884-85. Although In re Fabricio Alcantara-Perez did not

address the precise question before us, it recognized that the IJ’s

final order applies to the “case,” rather than “issue” or the “relief

granted.” That was true irrespective of the fact that such

remands do not “provid[e] an opportunity for the parties to

relitigate issues that were previously considered and decided.”

Id. We find no reason to reach a different conclusion in this

case, and we hold that the BIA’s denial of Vakker’s motion to

remand became final at the same time as the remainder of

Vakker’s “case”: at the time of the IJ’s March 13, 2006, order.

Vakker’s petition for review was therefore timely.

B

Vakker argues that he had become “at least facially

eligible” to renew his application for adjustment of status

following this court’s decision in Zheng v. Gonzales, 422 F.3d

98 (3d Cir. 2005), and that the BIA’s decision denying his

motion to remand was inadequate because the BIA failed to

specify which requirements rendered him ineligible. Vakker
11

also insists that the BIA’s decision violated his Due Process

rights. Finally, Vakker contends that we should grant his

petition in order to afford the BIA an opportunity to assess his

motion in light of interim regulations passed by CIS subsequent

to the BIA’s decision.

The BIA’s decision was neither inadequate for failing to

“specify which of the mandated requirements Petitioner failed

to meet,” Petitioner’s Br. at 25, nor violated Vakker’s Due

Process rights. The BIA’s opinion recognized that our decision

in Zheng, 422 F.3d at 119-20, invalidated the prior 8 C.F.R.

§1245.1(c)(8), insofar as it had categorically rendered all

“paroled” aliens ineligible to apply for adjustment of status.

App. at 10-11. However, the BIA ruled that Vakker was

nevertheless ineligible to have his request to renew his

adjustment of status application reconsidered in the course of his

removal proceedings. As the BIA explained, “the respondent

remains ineligible to renew his adjustment application because

he does not meet the renewal requirements under 8 C.F.R. §

1245.2(a).” App. at 10-11. At the time of the BIA’s decision,

that regulation set forth the following rule:

An adjustment application by an alien paroled

under section 212(d)(5) of the Act, which has

been denied by the director, may be renewed in

removal proceedings under 8 CFR part 1240 only

if:

(i) the denied application must have been properly

filed . . . ; and 
12

(ii) The applicant’s later absence and return to the

United States was under the terms of an advance

parole authorization on Form I-512 granted to

permit the applicant’s absence and return to

pursue the previously filed adjustment

application.

8 C.F.R. § 1245.2(a)(1) (amended May 12, 2006). 

Petitioner was a “paroled” alien seeking to renew a

previously denied application, and he does not argue that the

exception specified in § 1245.2(a)(1)(i) and (ii) applies to him.

Petitioner was “in removal proceedings,” 8 C.F.R. §

1245.2(a)(1) (amended May 12, 2006), both when he filed his

motion to remand and when the BIA denied it. Vakker points

to no reason why, given the plain language of § 1245.2(a)(1), he

would have been eligible to renew his application in his removal

proceedings before the IJ. Therefore, the BIA’s decision to

deny Vakker’s motion to remand was not in error. Similarly, the

BIA’s decision did not deny Vakker due process of the law

because the BIA considered Vakker’s motion and properly

denied it, providing adequate explanation and authority to

support its decision. 

We disagree with petitioner insofar as he argues that the

BIA’s decision was insufficient because it “cited no factor that

rendered the Zheng decision inapplicable to Petitioner’s request

for remand.” Petitioner’s Br. at 25. The BIA cited Jiang v.

Gonzales, 425 F.3d 649 (9th Cir. 2005), which held that §

1245.2(a), unlike the regulation invalidated in Zheng, was not

contrary to the INA. Id. at 653 (“we reject Jiang’s claim that 8
13

C.F.R. § 1245.2(a) . . . is invalid because it violates INA §

245(a) . . . . [That regulation] is not inconsistent with the

provisions of the INA.”). In Zheng we held that 8 C.F.R. §

1245.1(c)(8) (repealed May 12, 2006) was contrary to the

Congressional intent behind INA § 245(a) because it

categorically precluded all “parolees” from having their

adjustment of status applications considered in the first instance.

The court pointed out in Jiang that the same rationale did not

apply to § 1245.2(a)(1) (amended May 12, 2006), which (with

limited exceptions) only precluded paroled aliens from having

a previously denied application re-considered during removal

proceedings. 

Although the CIS recently revised § 1245.2(a)(1), that

revision occurred after the BIA issued its decision, and in any

event, the revised regulations appear to offer Vakker no greater

support than the previous versions. The revised regulations

state:

(i) In General. In the case of any alien who has

been placed in deportation proceedings or in

removal proceedings (other than as an arriving

alien), the immigration judge hearing the

proceedings has exclusive jurisdiction to

adjudicate any application for adjustment of status

the alien may file.

(ii) Arriving Aliens. In the case of an arriving

alien who is placed in removal proceedings, the

immigration judge does not have jurisdiction to

adjudicate any application for adjustment of status
14

filed by the arriving alien unless: [four

enumerated conditions are satisfied].

8 C.F.R. § 1245.2(a)(1). “Paroled” aliens are generally “arriving

aliens,” see 8 C.F.R. §§ 1.1(q), 1001.1(q); Zheng, 422 F.3d at

110-11 and n.10, and petitioner does not argue that he is not an

“arriving alien.” Nor does petitioner argue that the §

1245.2(a)(1) exception, see § 1245.2(a)(1)(ii)(A)-(D), applies to

him. Instead, petitioner argues that “pursuant to the interim

rules, the removal proceedings cannot be concluded without a

determination from the agency regarding [his] application.”

Petitioner’s Br. at 27. He offers no support for that argument

and no explanation for why it is consistent with §

1245.2(a)(1)(ii). Petitioner further emphasizes that he is no

longer in removal proceedings because a final order has issued

in his proceedings. However, he was in removal proceedings

both when he filed his motion with the BIA, and when the BIA

denied it. Furthermore, petitioner seeks to have his claim

remanded to the IJ; if he is no longer in removal proceedings,

under the interim regulations the IJ plainly lacks jurisdiction to

hear the claim. 8 C.F.R. § 245.2(a)(1) (“USCIS has jurisdiction

to adjudicate an application for adjustment of status filed by an

alien, unless the Immigration Judge has jurisdiction to

adjudicate the application under 8 C.F.R. § 1245.2(a)(1).”); 8

C.F.R. § 1245.2(a)(1) (see supra). Therefore, petitioner has

offered no argument why the new regulations would better aid

his cause than the version in force at the time the BIA decided

his motion. We express no opinion regarding whether Vakker

might be entitled to renew his application in another manner, but

the BIA did not err when it denied his motion to remand his

proceedings in order to renew his application before the IJ.
15

IV

For the foregoing reasons, we will deny the petition for

review.