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

-2- 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

-3- 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

-4- 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,

(2d Cir. 2006).

-5- 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

(a)(47), 1229a(c)(7)(C)(i);

(c)(2), 1003.23(b)(1); see also

Mahmood v. Holder,

(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);

(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,

, 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,”

(a), “who at the

-6- time of entry . . . was within one or more of the classes of aliens excludable by the

law existing at such time,”

§ 1251(a)(1)(A) (1994). It is undisputed that Li

lacked valid documentation to enter the United States and was therefore

excludable pursuant to

(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”),

(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

-7- 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.

-8- 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”),

, 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.”

(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.

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

1 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.”

. 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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