19-3001 (L) Juras v. Garland

In the United States Court of Appeals For the Second Circuit

August Term, 2021 Nos. 19-3001 (L), 20-248 (Con)

BARTLOMIEJ JURAS, Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. A056-062-135.

ARGUED: SEPTEMBER 21, 2021 DECIDED: DECEMBER 17, 2021

Before: LIVINGSTON, Chief Judge, CALABRESI, and NARDINI, Circuit Judges. Petitioner Bartlomiej Juras seeks review of decisions of the Board of Immigration Appeals affirming the decision of an Immigration Judge to allow Juras to withdraw his application for admission to the United States, denying Juras’s motion to reopen, and affirming the Immigration Judge’s finding that Juras was inadmissible. We hold that we lack jurisdiction to review both the agency’s decision to allow Juras to withdraw his application and to deny Juras’s motion to reopen, and accordingly DISMISS the petitions insofar as they challenge those decisions. However, because our jurisdiction to review the Immigration Judge’s inadmissibility finding depends on whether that finding survives the withdrawal of Juras’s application for admission and therefore qualifies as a “final order of removal,” and because this appears to be a question of first impression in this Circuit that also has not been resolved by the agency, we GRANT the petition for review in 19-3001 in part and REMAND the case to the Board of Immigration Appeals to clarify what, if any, preclusive effect the Immigration Judge’s inadmissibility finding, affirmed by the Board, would be given in subsequent immigration proceedings.

MICHAEL P. DIRAIMONDO (Marialaina L. Masi, Stacy A. Huber, on the brief), DiRaimondo & Masi, PC, Bohemia, NY, for Petitioner.

JOHN BEADLE HOLT (Ethan P. Davis, Keith I. McManus, Rachel L. Browning, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

2 TIMOTHY W. HOOVER, Hoover & Durland LLP, Buffalo, NY, as Amicus Curiae.

WILLIAM J. NARDINI, Circuit Judge:

Congress has sorted decisions in immigration proceedings into

two categories: those that are subject to judicial review, and those that

are not. The line between the two categories is often clear, but not

always. This case illustrates the point.

Bartlomiej Juras, a Polish citizen, was a lawful permanent

resident (“LPR”) of the United States—in common parlance, he had a

“green card.” But he moved back to Poland for a number of years to

care for his ailing grandfather. When Juras returned, an Immigration

Judge (“IJ”) determined that he had stayed overseas too long: he had

effectively abandoned his LPR status and was now inadmissible to

the United States. The IJ let Juras withdraw his application for

admission; this is an act of administrative discretion that generally

benefits an alien, who thereby avoids being “removed,” which would

3 make it more difficult for him to seek certain immigration benefits in

the future. But withdrawal might have a downside, because it could

mean that Juras would be definitively required to re-start the

immigration process from square one. Juras turned to the Board of

Immigration Appeals (“BIA”), where he hedged his bets. At first, he

argued that the IJ erred by finding him inadmissible but, if the BIA

disagreed, that he still wanted to withdraw his application for

admission. Rebuffed by the BIA on admissibility but allowed to

withdraw, Juras moved to reopen his proceedings. Backtracking on

his earlier position, he now sought to withdraw the withdrawal of his

application. But the BIA denied that request, too.

Juras has now filed two petitions in our Court which, together,

seek review of three agency rulings: (1) the IJ’s decision (affirmed by

the BIA) to allow withdrawal of Juras’s application for admission; (2)

the BIA’s denial of Juras’s motion to reopen, in which he tried to take

back his withdrawal; and (3) the IJ’s apparent determination

4 (seemingly affirmed by the BIA) that Juras had abandoned his LPR

status and was inadmissible. We easily conclude that we lack

jurisdiction to review the first two rulings, which are committed to

agency discretion by statute. On those two points, therefore, we

dismiss Juras’s petitions.

The third issue is thornier. We have jurisdiction over Juras’s

petition only if it seeks review of a “final order of removal” under the

Immigration and Nationality Act (“INA”),

(a)(1). An

order of removal, in turn, includes an “order . . . concluding that the

alien is deportable” under

(a)(47)(A). And so whether

we have jurisdiction to review any part of the IJ’s decision would

seem to depend in turn on whether there was in fact or could be any

decision on an application that was withdrawn—in other words,

whether there is or ever was an order “concluding that” Juras is

removable. That is a question on which neither we nor the BIA have

yet spoken in a precedential opinion.

5 While we are grateful for the arguments Amicus has made, we

have determined that it is most prudent in these circumstances to

remand the matter to the BIA for the limited purpose of providing its

view of the status of the IJ’s finding of inadmissibility (affirmed by

the BIA) made in connection with Juras’s withdrawn application—

that is, whether the agency would be obliged to give it binding effect

in future administrative immigration proceedings or whether that

finding is nothing more than dicta for future agency officials to follow

(or not) only as they might deem it persuasive. The agency’s view on

the nature of its inadmissibility finding will then inform our analysis

of whether Congress has given us jurisdiction to review the substance

of the inadmissibility finding.

I. BACKGROUND

A. The Proceedings Before the Immigration Judge

Ordinarily, an immigrant seeking admission to the United

States must present a valid, unexpired immigrant visa and a valid,

unexpired passport or other travel document.

(a).

6 Someone who qualifies as a “returning resident”—including an LPR

returning from a “temporary visit abroad”—need not meet these

requirements.

(a)(27)(A), 1181(b). But this exemption

applies only if a returning LPR’s visit abroad was indeed

“temporary.” If not, he is treated like others seeking entry to the

United States and so is inadmissible pursuant to

(a)(7)(A)(i)(I), absent valid entry documents.

In 2003, Juras, a Polish citizen, was admitted to the United

States as an LPR. In 2007, Juras returned to Poland and stayed there

for a long period of time. In 2013, after living in Poland for six years,

Juras attempted to reenter the United States from Canada over the

Rainbow Bridge in Niagara Falls, New York. Juras was charged as

inadmissible as an arriving alien without valid entry documents,

paroled into the United States for a year, and placed in removal

proceedings. Juras was represented by counsel during these

proceedings and challenged the government’s claim that he had

7 abandoned his LPR status by remaining outside of the United States

for an extended period.

The removal proceedings against Juras culminated in a hearing

before an IJ in 2018, at which Juras testified as follows: After becoming

an LPR in 2003, Juras traveled between Poland and the United States

several times between 2003 and 2007, staying in Poland for three to

eight months at a time. In 2007, Juras traveled to Poland and

remained there for six years. During that time, Juras took care of his

grandfather, who suffered from Alzheimer’s disease and dementia,

and managed his grandfather’s farm. Juras initially planned to return

to the United States by Christmas of 2010, thinking that his

grandfather’s condition would improve by then. The grandfather

remained in poor health, however, so Juras stayed in Poland until

2013, when his father was able to retire and take over Juras’s

grandfather’s care. When asked what steps Juras took between 2007

to 2013 to return to the United States, Juras answered that he stayed

8 in contact with a friend who owned a company in the United States

for which Juras was working at the time of the hearing. He further

testified that he did not own property in Poland and did not work

while in Poland, but that he did have Polish bank accounts which he

closed when he returned to the United States in 2013. Juras admitted

that he did not file taxes or rent an apartment in the United States

before 2013. He further admitted that he never asked United States

Citizenship and Immigration Services for permission to remain

outside the United States for an extended period. Ultimately, Juras

testified that he did not believe that he had abandoned his permanent

resident status because he always intended to return to the United

States and build a life but had no choice but to remain in Poland.

Juras’s sister, Michaelina Babuska, also testified at the hearing.

She corroborated Juras’s testimony concerning the need for Juras to

stay in Poland to care for their sick grandfather, but testified that Juras

9 and his family members were all aware that Juras’s staying in Poland

placed his LPR status in jeopardy.

In its closing argument, the government argued that Juras had

abandoned his LPR status but noted that it would not object if the IJ

let Juras withdraw his application for admission. Under

(a)(4) and

(d), an IJ may permit an arriving alien

in removal proceedings to withdraw his application for admission if

the IJ is satisfied that the alien has the intent and the means to

immediately depart the United States, and if permitting withdrawal

would be in the interests of justice. There can be real advantages for

an alien to withdraw an application in such a situation. An alien

allowed to withdraw his application and leave the country is not

considered ”removed,” and therefore avoids the restrictions found in

(a)(9)(A)(i), which provides that an alien who has been

removed is, with some exceptions, inadmissible for five years after

the date of his removal. Juras’s counsel argued in closing that Juras

10 had not abandoned his LPR status but did not address the possibility

of withdrawal.

At the end of the hearing, the IJ found that Juras had

abandoned his LPR status by staying in Poland between 2007 and

2013. Because Juras did not qualify as an LPR returning from a

temporary visit abroad, the IJ found that Juras was inadmissible

under

(a)(7)(A)(i)(I) as an arriving alien seeking

admission to the United States without a visa and a travel document.

Observing that “[a]n order of removal can carry with it certain harsh

consequences,” the IJ next considered whether to allow Juras to

withdraw his application for admission under

(a)(4)

and

(d). Certified Administrative Record 1 (“CAR”)

126. Noting the government’s non-opposition, the IJ stated that she

would “allow the respondent to withdraw [h]is application for

admission rather than enter an order of removal against him.”

1References to the Certified Administrative Record refer to the record in Juras’s petition for review of the BIA’s denial of his motion to reopen, No. 20-248.

11 Juras’s lawyer did not object to or otherwise address the IJ’s decision

to allow Juras to withdraw his application.

B. Juras’s Appeal to the BIA

Through counsel, Juras appealed to the BIA. Juras argued that

the IJ erred in finding that Juras had abandoned his LPR status.

However, Juras also argued that, in the event the BIA agreed that he

had abandoned his LPR status, he “continue[d] to request withdrawal

of his application for admission” to the United States. CAR 55.

On August 20, 2019, the BIA dismissed Juras’s appeal. The BIA

upheld the IJ’s finding that Juras had abandoned his LPR status and

was thus inadmissible for lack of valid entry documents. The BIA also

“note[d] DHS’[s] non-opposition and affirm[ed] the Immigration

Judge’s decision to allow the respondent to withdraw his application

for admission.” CAR 44. Thereafter, Juras found new counsel and

timely petitioned for our review of the BIA’s August 20, 2019,

decision.

12 C. Juras’s Motion to Reopen

Juras filed a timely motion to reopen the proceedings before the

BIA. In an affidavit accompanying his motion to reopen, Juras stated

that he had not understood that, by withdrawing his application for

admission, he was accepting that he had abandoned his green card

and that he would be required to return to Poland immediately. Juras

explained that he “d[id] not wish to withdraw [his] application for

admission, and ask[ed] that [his] prior attorney’s request to withdraw

[his] application for admission be withdrawn.” CAR 39.

On December 23, 2019, the BIA denied Juras’s motion to

reopen. The BIA discredited Juras’s statement that he did not

understand the legal consequences of withdrawing his application for

admission because Juras was represented by counsel before the IJ and

on appeal, where he asked the BIA to affirm the IJ’s decision to allow

withdrawal. The BIA noted that Juras had not argued that his prior

counsel had been ineffective, and that absent “egregious

circumstances,” an attorney’s statements and actions are binding

13 upon his client. CAR 3. The BIA found that Juras had not shown

egregious circumstances and denied his motion to reopen. Juras

timely petitioned for review of the BIA’s denial of his motion to

reopen.

Juras’s two petitions were consolidated for our review. On

April 28, 2021, after receiving briefing on the merits, we ordered

supplemental briefing to address whether the Court has jurisdiction

over Juras’s petitions under

(a). After both Juras and

the government argued that we have jurisdiction, we appointed

Timothy W. Hoover as amicus curiae to brief and to argue that the

Court does not have jurisdiction. Amicus has ably discharged his

assigned responsibilities, and the Court thanks him for his efforts.

II. DISCUSSION

A. Judicial Review Under the INA

Section 1252 of Title 8 of the United States Code governs

judicial review of orders of removal. The statute restricts our

14 jurisdiction to entertain petitions for review of agency orders in

immigration cases in several ways.

First, we have “jurisdiction to review only petitions for review

of final orders of removal.” Alibasic v. Mukasey,

(2d Cir.

2008) (internal quotation marks omitted); see also

(d).

The INA in turn defines an order of removal as “the order of the

special inquiry officer . . . concluding that [an] alien is deportable or

ordering deportation,”

(a)(47)(A), 2 and provides that

such orders become final “upon the earlier of (i) a determination by

the Board of Immigration Appeals affirming such order; or (ii) the

expiration of the period in which the alien is permitted to seek review

of such order by the Board of Immigration Appeals,” 8 U.S.C.

2 Although the statute refers to an “order of deportation,” that term is used interchangeably in the INA with “order of removal.” Thapa v. Gonzales,

, 333 n.3 (2d Cir. 2006) (noting that Congress amended the INA to replace the previous distinction between deportation and exclusion with the inclusive term “removal” and construing the reference to orders of deportation in

(a)(47)(A) to apply to orders of removal.)

15 § 1101(a)(47)(B). “A ‘special inquiry officer’ is an IJ . . . .” Rhodes-

Bradford v. Keisler,

(2d Cir. 2007) (citing

).

In addition to restricting judicial review to final orders of

removal, § 1252 carves out certain categories of agency decisions over

which we lack jurisdiction. See

(a)(2). As relevant here,

§ 1252(a)(2)(B) deprives us of jurisdiction to review decisions

committed by statute to the discretion of the Attorney General.

(a)(2)(B) (“[N]o court shall have jurisdiction to review . . .

any . . . decision or action of the Attorney General . . . the authority for

which is specified under this subchapter to be in the discretion of the

Attorney General . . . .”). Section 1252(a)(2)(B) applies only to

determinations made discretionary by statute. Kucana v. Holder,

(2010) (“We hold that the key words ‘specified under this

subchapter’ refer to statutory, but not to regulatory, specifications.”).

And the “subchapter” in question is Subchapter II of Chapter 12 of

16 Title 8 of the United States Code. Subchapter II is a lengthy one,

currently encompassing Sections 1151 through 1382 of Title 8.

Finally, although under § 1252(a)(2) we generally lack

jurisdiction to review, inter alia, discretionary decisions by the

Attorney General, a Court of Appeals nonetheless retains jurisdiction

in a petition for review filed pursuant to § 1252 to review any

“constitutional claims or questions of law” raised by such decisions.

(a)(2)(D); see also Rosario v. Holder,

(2d

Cir. 2010).

B. Our Jurisdiction over Juras’s Claims

With these general principles in mind, we evaluate whether we

have jurisdiction over the claims raised by Juras in his petitions for

review. Juras challenges (1) the IJ’s 3 decision (affirmed by the BIA) to

allow him to withdraw his application for admission to the United

3“Ordinarily we review the BIA’s decision, not the decision of the IJ . . . .” Secaida- Rosales v. INS,

(2d Cir. 2003). However, where, as here, the BIA summarily affirms and adopts an IJ’s decision, we review the decision of the IJ. See

17 States; (2) the BIA’s denial of his motion to reopen the proceedings;

and (3) the IJ’s putative finding (affirmed by the BIA) that he was not

admissible as a “returning resident” and lacked the necessary entry

documents. We consider our jurisdiction over each of these claims in

turn.

1. Our Jurisdiction to Review the Withdrawal Decision

We first hold that we lack jurisdiction to review an IJ’s decision

to allow a petitioner to withdraw his application for admission to the

United States. This conclusion follows from a straightforward

application of

(a)(2)(B) which, as noted above, deprives

courts of jurisdiction to review decisions committed by statute to the

discretion of the Attorney General under Subchapter II. The decision

to allow withdrawal of an application for admission is precisely such

a decision:

(a)(4) provides that “[a]n alien applying for

admission may, in the discretion of the Attorney General and at any time,

be permitted to withdraw the application for admission and depart

immediately from the United States.” (emphasis added). Although

18 the Attorney General has delegated the exercise of this discretion by

regulation to, inter alia, IJs, see

(d), the decision still

falls squarely within boundaries of § 1252(a)(2)(B).

We therefore lack jurisdiction over Juras’s petition for review

of the IJ’s withdrawal decision except insofar as Juras raises a

constitutional claim or question of law. See

(a)(2)(B),

(D). Juras makes no claim under the United States Constitution, so

we ask only whether his arguments raise a question of law. In doing

so, we “determine our jurisdiction by looking at the underlying

nature of the [agency’s] determination rather than any gloss offered

by the parties” and ask “whether the [agency] is expressing legal

doctrine or whether it is engaged in the factfinding and factor-

balancing that are at the core of its discretion.” Rosario,

(emphasis omitted); see also Nouritajer v. Jaddou,

(2d Cir.

2021) (rejecting plaintiff’s attempt to cast challenges as procedural

19 rather than substantive to avoid operation of § 1252(a)(2)(B)’s

jurisdictional bar).

Juras argues that the IJ erred by failing to explain to Juras the

legal consequences of the withdrawal of his application, failing to

order Juras to leave the United States by a certain date, and failing to

ask Juras certain questions before granting withdrawal. Specifically,

Juras faults the IJ for failing to “ask[] the Petitioner if he had a valid

passport or if he had the funds to purchase a ticket to leave the U.S.”

and for failing to “specifically ask the Petitioner, under oath, ‘do you

have the intent to leave the U.S. if I allow you to withdraw your

application for admission.’” Pet. Br. 17. But compliance with the legal

standard governing the withdrawal of an application for admission

to the United States does not require an IJ to first explain the legal

consequences of withdrawal to an immigrant, let alone one

represented by counsel. Nor is there any requirement that an IJ ask

the specific questions Juras identifies. An IJ must simply be assured

20 that an arriving alien, “in addition to demonstrating that he or she

possesses both the intent and the means to depart immediately from

the United States, [has] establishe[d] that factors directly relating to

the issue of inadmissibility indicate that the granting of the

withdrawal would be in the interest of justice.”

; see

also In re Gutierrez,

, 564–65 (B.I.A. 1988) (same).

Although the questions Juras claims the IJ should have asked would

perhaps help establish an arriving alien’s intent and means to depart

immediately from the United States, they are not required by law.

Juras’s arguments, then, boil down to “a quarrel about fact-finding,”

and we do not have jurisdiction to consider them. Barco-Sandoval v.

Gonzales,

(2d Cir. 2008). Accordingly, we dismiss

Juras’s petition for review of the BIA’s August 20, 2019, decision

insofar as it challenges the agency’s decision to allow him to

withdraw his application because this decision is committed by

statute to the discretion of the Attorney General.

21 2. Our Jurisdiction to Review the Denial of Juras’s Motion to Reopen

We next consider our jurisdiction to review the BIA’s denial of

Juras’s motion to reopen. We hold that § 1252(a)(2)(B) bars our review

of the denial of the motion to reopen because it is sufficiently

connected to the underlying order allowing withdrawal.

In Durant v. INS, we considered the effect of a different

jurisdictional bar found in

on a motion to reopen

proceedings before the BIA.

, 115–16 (2d Cir. 2004). The

provision at issue in Durant—§ 1252(a)(2)(C)—bars judicial review of

final orders of removal against aliens whose convictions for certain

criminal offenses render them removable. The petitioner in Durant

was ordered removed because of his convictions for qualifying

criminal offenses, and the BIA later denied his motion to reopen the

proceedings. Durant, 393 F.3d at 114–15. The petitioner sought our

review of both his final order of removal and the denial of his motion

to reopen. Id. We held that we lacked jurisdiction over both petitions

22 because the “orders [were] sufficiently connected that permitting

review of a motion to reopen when § 1252(a)(2)(C) bars review of the

final order of removal would provide an improper backdoor method

of challenging a removal order.” Id. at 115. We reasoned that “[e]ven

though [we] may not consider the merits of the underlying removal

order when reviewing the denial of a motion to reopen, a holding . . .

that the BIA abused its discretion in denying a motion to reopen . . .

would have the effect of undermining the jurisdictional bar imposed

by

(a)(2)(C)” and would therefore “contravene

Congress’s intent” in limiting judicial review of certain orders in

immigration matters.

We reaffirmed and expanded this principle

in later cases. See Santos-Salazar v. U.S. Dep’t of Just.,

(2d Cir. 2005) (holding that we lacked jurisdiction to review motions

to reconsider a denial of a motion to reopen where we lacked

jurisdiction to review the underlying order of removal); Sepulveda v.

Gonzales,

(2d Cir. 2005) (applying the “Santos-Salazar

23 principle” to hold that we had jurisdiction to review motions to

reopen and to reconsider where we were not barred by § 1252(a)(2)(B)

from reviewing the underlying final order of removal). See also

Nouritajer,

(“[S]ubject matter jurisdiction is lacking to

review the underlying discretionary . . . decision by USCIS, so

jurisdiction is similarly lacking to review . . . the denial of the motion

to reopen.”).

Applying the logic of Durant and the cases that followed it, the

denial of the motion to reopen and the order allowing the withdrawal

of Juras’s application for admission are “sufficiently connected” such

that our review of the former would undermine Congress’s decision

to bar our review of the latter. Sepulveda,

. Because “we

cannot, on a petition for review of a motion to reopen, exercise

jurisdiction over that which we would not have had jurisdiction to

review on direct appeal,” Omar v. Mukasey,

(2d Cir.

2008), we lack jurisdiction to review Juras’s motion to reopen. We

24 accordingly dismiss for lack of jurisdiction Juras’s petition for review

of the denial of his motion to reopen.

3. Our Jurisdiction to Review the BIA’s Inadmissibility Finding

Finally, we consider our jurisdiction to review the IJ’s apparent

finding, seemingly affirmed by the BIA, that Juras was inadmissible

as lacking proper documents and not a “returning resident.” In doing

so, we must grapple with the following question: what is the status of

the IJ’s finding that Juras was inadmissible now that he has

withdrawn his application? As explained below, the parties and

Amicus offer different answers as to whether that inadmissibility

finding survives the withdrawal of Juras’s application, or whether

Juras would be entitled to a de novo adjudication of his abandonment

of his LPR status should he reapply for admission. The answer to this

question is critical to our jurisdiction to review the inadmissibility

finding. As stated above, we have jurisdiction to review only a “final

order of removal,”

(a)(1). So if, as Amicus and the

25 government argue, the withdrawal of Juras’s application rendered the

IJ’s inadmissibility finding a legal nullity, then it appears we must

dismiss his petition for review, either for lack of a final order of

removal or because the matter is moot. See Swaby v. Ashcroft,

, 160–61 (2d Cir. 2004); see also Hill v. Holder,

(2d Cir. 2009).

We consider first the nature of an immigrant’s withdrawal of

an application for admission. Before Congress enacted the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), neither statute nor regulation expressly provided for such

a withdrawal. See Gutierrez, 19 I. &. N. Dec. at 564. However, “IJs and

immigration officers exercised their discretion to permit aliens to

withdraw their applications for admission based on case law and

internal practices.” United States v. Cisneros-Resendiz,

(9th Cir. 2011). In In re Gutierrez, the BIA clarified how IJs should

exercise this discretion, holding that an immigration judge “should

26 not allow withdrawal unless an alien, in addition to demonstrating

that he possesses both the intent and the means to depart immediately

from the United States, establishes that factors directly relating to the

issue of his admissibility indicate that granting withdrawal would be

in the interest of justice.” Gutierrez, 19 I. & N. Dec. at 564–65. The BIA

further held that “a balancing of the equities test is not an appropriate

method by which to determine whether an alien merits permission to

withdraw an application for admission,” and that “once the exclusion

hearing has been conducted and the issues of excludability have been

resolved, such permission should ordinarily only be granted with the

concurrence of the [government].”

In enacting IIRIRA, Congress codified the procedure for

withdrawing an application. See

(a)(4). As noted

above, § 1225(a)(4) provides that “[a]n alien applying for admission

may, in the discretion of the Attorney General and at any time, be

permitted to withdraw the application for admission and depart

27 immediately from the United States.” Id. The Attorney General later

promulgated regulations delegating this discretion to IJs and

adopting the standard for allowing withdrawal articulated by the BIA

in Gutierrez.

(d). Also as noted above, under the INA,

an alien who is removed but seeks admission to the United States

within five years of the date of his removal is inadmissible unless he

first receives the Attorney General’s permission to reapply for

admission.

(a)(9)(A)(i)–(iii). “However, if permission

to withdraw an application for admission is granted to an applicant,

his departure is not pursuant to an order of [removal] and permission

to reapply for admission is not required.” Gutierrez,

.

Although the relevant statutes, regulations, and case law make

clear the standard an IJ should apply when deciding whether to allow

withdrawal of an application for admission, and that an applicant

granted withdrawal avoids the five–year bar on reapplying for

28 admission found in

(a)(9)(A)(i), these authorities do not

address the effect, if any, of determinations made in a proceeding in

which the application was withdrawn.

The parties and Amicus offer divergent views on this point.

Juras argues that, by withdrawing his application, he “relinquished

his green card” and, as a result, “may have considerable problems in

the future reentering the U.S. . . . .” Pet. Br. 16. But Juras cites no

authority for this point, and we have found none.

The government argues that there is a final order of removal in

this case because “the agency’s decision included a determination that

Mr. Juras is deportable . . . for having abandoned his lawful

permanent resident status” and the definition of “final order of

removal” includes “a determination that the alien is deportable . . . .”

Gov’t Supp. Br. 1–2 (internal quotation marks omitted). An implicit

premise of this argument is that there was an operative

inadmissibility finding that survived the withdrawal of Juras’s

29 application—that is, that the IJ’s “order,” not just its preliminary

thinking, contained the conclusion that Juras was removable.

Curiously, the government later argues that, although we have

jurisdiction because a final order of removal was entered against

Juras, we should dismiss the petition as moot. Citing our

unpublished decision in Hill v. Holder,

(2d Cir. 2009),

the government argues that “the withdrawal . . . means that Mr. Juras

is free to leave the United States without incurring a legal ‘injury,’ as

the order does not preclude him from reapplying for admission and

reasserting his claimed lawful permanent resident status.” Gov’t

Supp. Br. 4. This latter position would seem to imply that the IJ’s

finding of inadmissibility had no effect.

Indeed, Amicus draws precisely that conclusion from Hill v.

Holder: that the withdrawal of Juras’s application “render[ed] the

prior IJ finding [of inadmissibility] to be nothing more than an

advisory opinion that will not be binding on any future border official

30 or, should it come to it, any future IJ.” Amicus Br. 13. This, in the

view of Amicus, has two consequences. First, there is no final order

of removal because there is no finding of inadmissibility. Second, the

case is now moot.

Because it is central to the arguments made to us in the briefs,

a closer review of our decision in Hill v. Holder is in order, even though

it is a non-precedential summary order. Hill involved a petitioner

who had become an LPR in 1996. In re Hill,

, at *1

(B.I.A. Nov. 12, 2008). In 2004, Hill was convicted of violating

(a)(2) by knowingly and willfully making materially

false statements in connection with the delivery of or payment for

health care benefits.

Hill then left the United States, came back,

and asked to be readmitted as a returning LPR.

An IJ found him

inadmissible under

(a)(2)(A)(i)(I) for having

committed a crime of moral turpitude but let him withdraw his

application for admission.

Hill tried to appeal the IJ’s

31 determination that his crime of conviction qualified as a crime of

moral turpitude, but the BIA dismissed his appeal as moot.

Specifically, the BIA held that the “withdrawal of an application for

admission takes the question of inadmissibility (and indeed,

removability) ‘off the table’” and concluded that the IJ’s finding of

inadmissibility was “rendered inoperative” by the withdrawal of

Hill’s application.

Hill petitioned for our review, arguing that the inadmissibility

finding survived the withdrawal of his application. Hill,

. We relied on the BIA’s reasoning that, because he withdrew

his application, Hill would be “entitled to a de novo consideration of

his admissibility” should he reapply for admission to the United

States and dismissed his petition as moot.

at 655–56.

Of course, In re Hill and Hill v. Holder were both non-

precedential opinions (by the BIA and our Court, respectively), and

therefore could not dictate our decision today. But even as persuasive

32 authority, we do not find them particularly enlightening because they

ultimately rest upon the BIA’s citation of various authorities that—

upon closer examination—do not discuss whether the withdrawal of

an application for admission renders any finding of inadmissibility a

legal nullity without future preclusive effect. See In re Hill,

at *1 (citing In re Manalo,

(B.I.A. 1974) (an

alien granted withdrawal departs the United States without being

excluded); In re Lepofsky,

(B.I.A. 1974) (IJ had power

to either allow withdrawal of application or enter an order of

exclusion and deportation, not to parole aliens into the United States);

In re Le Floch,

, 252–54 (B.I.A. 1969) (an alien has

no right to withdraw her application for admission during an appeal

to the BIA after the entry of an order of exclusion, and withdrawal

during an appeal will be allowed only to prevent a gross miscarriage

of justice); In re Estrada-Tena,

, 430–31 (B.I.A. 1967)

(holding that an applicant for admission may withdraw application

33 as of right and ordering that individual applicant be allowed to

withdraw, that the order entered in exclusion proceedings below be

withdrawn, and that the exclusion proceedings be terminated),

overruled in part by In re Vargas-Molina,

(B.I.A.

1971)). Nor have we found any other decision of this Court 4 or the

BIA that addresses the effect of a withdrawal of an application on a

putative finding of inadmissibility made in adjudicating that

application.

4 At least one other Court of Appeals has reached a conclusion in tension with that reached by the BIA and our Court in Hill, albeit in a different posture. See Odei v. DHS,

(7th Cir. 2019). Odei involved an alien who had been found inadmissible, had his invalid visa cancelled, and was detained but not removed because he had indicated a fear of return to his home country.

. He later dropped the asylum claim and was allowed to withdraw his application for admission and leave the United States voluntarily.

The alien later brought a civil suit to challenge the decision not to admit him, but the Seventh Circuit affirmed the dismissal of the suit under

(a)(2)(A)(i), which provides that “no court shall have jurisdiction to review . . . any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to § 1225(b)(1).” Id. at 1094–95. The Court of Appeals rejected the alien’s argument that because he had withdrawn his application, there was no “order of removal” sufficient to trigger the jurisdictional bar. Id. It did so simply by analogizing to a case where an IJ granted a waiver of removal which the BIA reversed, id. at 1094–95 (discussing Guevara v. Gonzales,

, 975–76 (7th Cir. 2007)), an analogy we find unhelpful in understanding the situation before us. See infra.

34 The answer to that question is key to deciding whether we have

jurisdiction over Juras’s petition for review based on a final “order of

deportation,” which the INA defines in the disjunctive as an order

“concluding that [an] alien is deportable or ordering deportation.”5

(a)(47)(A). Indeed, in arguing that we have jurisdiction

under the first prong of this definition because the IJ determined that

Juras is removable (even though she did not order his removal), the

government cites several of our precedents relying on the disjunctive

nature of § 1101(a)(47)(A). See, e.g., Alibasic v. Mukasey,

,

82–84 (2d Cir. 2008); Lazo v. Gonzales,

, 54–55 (2d Cir. 2006).

These precedents have addressed what it takes to satisfy the

first prong of the definition of an “order of deportation,” but have not

answered the question before us—whether the IJ’s finding of

inadmissibility, affirmed by the BIA, has any preclusive effect given

the withdrawal of Juras’s application (or, for that matter, whether

5 As noted above, the terms “deportation” and “removal” are used interchangeably under the INA. See supra n.2.

35 there can be any findings at all on a withdrawn application). In

Alibasic, the IJ found the petitioner removable but granted his asylum

application. Alibasic, 547 F.3d at 82–83. The BIA then vacated the IJ’s

grant of asylum but remanded the matter so the IJ could consider the

availability of other relief like voluntary departure. Id. at 83–84. We

denied the government’s motion to dismiss for lack of jurisdiction,

reasoning that “[t]he IJ’s underlying finding of removability . . . still

stands and . . . the BIA has simply removed an impediment to the

removal that was ordered by the IJ.” Id. at 83 (internal quotation

marks omitted). The IJ’s initial finding of removability was therefore

a “final order of removal” that gave us jurisdiction over the petition

for review. Id. Here, by contrast, it is not clear whether the IJ’s

putative finding of inadmissibility (which the BIA affirmed) or her

statements about that finding “still stand” given that Juras withdrew

his application for admission, and the BIA affirmed that withdrawal.

36 Likewise, in a case even further afield from the present

situation, we denied a petition for review in Lazo v. Gonzales.

. In Lazo, the petitioner conceded removability before the IJ, who

granted him a waiver from removability.

. The BIA

subsequently reversed the waiver.

The petitioner argued that the

BIA’s decision amounted to entry of a removal order in the first

instance—something reserved to an IJ, and which therefore exceeded

the BIA’s authority.

We disagreed. In our view, the IJ had issued

an order of removal within the definition of § 1101(a)(47)(A) because

the IJ concluded that the petitioner was removable, and the BIA

merely “removed an impediment to the removal that was ordered by

the IJ.” Id. That is, the operative finding of removability was ordered

not by the BIA, but by the IJ. 6 Id. As with Alibasic, Lazo provides no

6Similarly, in Rhodes-Bradford v. Keisler,

(2d Cir. 2007), we dismissed a petition for review where an IJ had terminated removal proceedings against the petitioner without finding him removable, and the BIA reversed and ordered the petitioner removed.

. We vacated the BIA’s order, concluding that the BIA did not have the authority to issue removal orders in the first instance, and dismissed the appeal because there was no final order of removal—i.e., no order

37 guidance for the present case, because it is not clear whether the IJ’s

finding that Juras is inadmissible was ever operative.

In sum, our precedents do not answer the question we

currently face—whether there exists in this case an operative order

concluding that Juras is removable.

While we are grateful for Amicus’s arguments, we think it

prudent in these circumstances to allow the BIA the opportunity to

consider the arguments in the first instance, namely whether there is

currently a valid “finding of removability,” Alibasic,

,

that presents us with a final order of removal sufficient to confer

jurisdiction under

(a)(47)(A) and 1252; 7 and

by the IJ finding that the petitioner was removable or ordering his removal. See

. 7 Even where Congress has barred courts from exercising jurisdiction to review

certain types of immigration proceedings, “[w]e retain jurisdiction . . . to determine whether [a] jurisdictional bar applies—that is, whether a petitioner satisfies the jurisdictional facts.” James v. Mukasey,

(2d Cir. 2008); see also Kuhali v. Reno,

(2d Cir. 2001) (“Our authority to address such ‘jurisdictional facts’ stems not from Congress’[s] creation of a particular remedy, but rather from the inherent jurisdiction of Article III federal courts to determine their jurisdiction.”). Where possible, we have simply determined the presence or

38 concomitantly, whether Juras has a legally cognizable interest in the

outcome such that his petition for review is not moot. We therefore

express no position at this time with respect to these questions.

“Generally speaking, a court of appeals should remand a case

to an agency for decision of a matter that statutes place primarily in

agency hands.” I.N.S. v. Orlando Ventura,

(2002).

Sometimes remand is “required by elementary principles of

administrative law,” and sometimes remand is, “as a matter of

discretion, . . . prudent and useful . . . .” Liu v. U.S. Dept. of Just.,

(2d Cir. 2006) (emphasis omitted). As noted above, the

relevant statutes and regulations do not speak directly to the issue,

and there is a dearth of case law—both from the agency and from

Article III courts—on this important question, and so we think that

absence of those “jurisdictional facts” ourselves. See, e.g., Bell v. Reno,

(2d Cir. 2000) (determining the “jurisdictional fact” that petitioner had been convicted of a qualifying aggravated felony triggering the jurisdictional bar found at

(a)(2)(C)). We have at other times, however, found it prudent to remand to the BIA for consideration, in the first instance, of issues upon which it had not previously ruled that bear upon our jurisdictional analysis. See Gelman v. Ashcroft,

, 152–53 (2d Cir. 2002).

39 remand is warranted as a matter of discretion. See

(identifying

“[i]nsufficient agency attention,” “[s]tatutory ambiguity,” “[d]earth

of circuit law,” and “[i]mportance of the issue” as reasons counseling

remand as a prudential matter). On remand, “[t]he 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 determine

whether its decision exceeds the leeway that the law provides.”

Orlando Ventura,

. This process thus “serves the

convenience of the BIA as well as this Court, and promotes the

purposes of the INA.” Ucelo-Gomez v. Gonzales,

(2d

Cir. 2006). “The administrative process will best be vindicated by

clarity in its exercise,” S.E.C. v. Chenery Corp.,

(1943)

(internal quotation marks omitted), and so we remand the matter to

the BIA to provide that clarity.

40 Accordingly, we grant in part Juras’s petition for review, vacate

the August 20, 2019, order of the BIA insofar as it affirmed the IJ’s

putative inadmissibility finding, and remand the matter back to the

BIA to clarify its understanding of the status of any admissibility

finding in light of the withdrawal of Juras’s application for admission

to the United States. Specifically, the BIA should explain what, if any,

preclusive effect the IJ’s putative finding of inadmissibility, as

affirmed by the BIA after withdrawal of Juras’s application, would be

given in subsequent immigration proceedings.

III. CONCLUSION

In sum, we hold as follows:

(1) We lack jurisdiction to review the BIA’s affirmance of the

IJ’s decision to allow Juras to withdraw his application for

admission because it is a decision committed by statute to

the discretion of the Attorney General.

(2) We lack jurisdiction to review the BIA’s denial of Juras’s

motion to reopen because it is sufficiently connected with

41 the BIA’s affirmance of the IJ’s withdrawal decision, and we

cannot, on review of a motion to reopen, exercise

jurisdiction over that which we could not review on direct

appeal.

(3) In order for this Court to determine its jurisdiction to review

the BIA’s affirmance of the IJ’s decision, the BIA should

clarify its understanding of the effect of the IJ’s findings

concerning Juras’s application for admission to the United

States once Juras was allowed to withdraw that application.

Specifically, the BIA should explain what, if any, preclusive

effect the IJ’s finding of inadmissibility (seemingly affirmed

by the BIA despite the withdrawal of the petitioner’s

application) would be given in subsequent immigration

proceedings.

We therefore DISMISS in part and GRANT in part Juras’s

petition for review of the BIA’s August 20, 2019, decision and remand

42 the matter to the BIA for consideration of whether the IJ’s

inadmissibility finding survived the withdrawal of Juras’s

application. We further DISMISS Juras’s petition for review of the

BIA’s December 23, 2019, denial of his motion to reopen.

43