Bronisz v. Ashcroft

378 F.3d 632

Robert BRONISZ, Petitioner, v. John D. ASHCROFT, United States Attorney General, Respondent.

No. 02-4264.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2004.

Decided August 5, 2004.

Petition for review from the Board of Immigration Appeals.

Stanley J. Horn (argued), Rebecca M. Shapiro, Azulay, Horn & Seiden, Chicago, IL, for Petitioner.

George P. Katsivalis, Chicago, IL, Regina Byrd (argued), Washington, DC, for Respondent.

Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Robert Bronisz, a native and citizen of Poland, seeks review of an order of the Board of Immigration Appeals ("BIA") denying him suspension of deportation and voluntary departure. For the reasons set forth in the following opinion, we dismiss Mr. Bronisz's petition for lack of jurisdiction.

I BACKGROUND

A. Asylum Proceedings

Mr. Bronisz arrived as a visitor to the United States in September 1989. After he overstayed his visa, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against him in February 1990. Mr. Bronisz conceded deportability but applied for political asylum; an immigration judge ("IJ") rejected his claim but allowed him to depart voluntarily. Mr. Bronisz appealed this decision to the BIA, which dismissed his appeal in October 1991 after he failed to submit a brief. Mr. Bronisz did not leave the country but instead remained and started a marble and granite installation company in Chicago, Illinois.

B. NACARA Proceedings

In 1998, Mr. Bronisz filed a motion to reopen his case in order to apply for suspension of deportation pursuant to the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub.L. 105-100, 111 Stat. 2193 (1998). Before enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009-575, an alien could apply for suspension of deportation if he or she could show seven years of continuous presence in the United States, good moral character during that period, and extreme hardship to either the alien or to his or her spouse, parent, or child if removed. Immigration and Nationality Act ("INA") § 244, codified at 8 U.S.C. § 1254(a) (1994) (repealed). IIRIRA replaced suspension of deportation with the more stringent cancellation of removal, IIRIRA § 304(a), 110 Stat. at 3009-594, codified at 8 U.S.C. § 1229b(b) (2004), and instituted the "stop-time" rule, which terminates the period of continuous presence upon the service of a notice to appear or order to show cause, id., 110 Stat. at 3009-595, codified at 8 U.S.C. § 1229b(d) (2004).

Two years later, NACARA amended IIRIRA by exempting certain aliens, including those of Polish origin, from the application of the stop-time rule. See NACARA § 203(a), 111 Stat. at 2196-97 (amending IIRIRA § 309(c)(5)(C)(i), 110 Stat. at 3009-627). By virtue of this exemption, certain aliens who were placed in deportation proceedings before April 1, 1997, became eligible for suspension of deportation, id., while others placed in removal proceedings on or after April 1, 1997, became eligible for cancellation of removal, id. § 203(b), 111 Stat. at 2198-99 (amending IIRIRA § 309(f)(1), 110 Stat. 3009-627). See 143 Cong. Rec. 25,544 (1997). For those aliens, like Mr. Bronisz, whose proceedings already had terminated, NACARA also allowed them to file one motion to reopen to apply for relief. NACARA § 203(c), 111 Stat. at 2199 (amending IIRIRA § 309(g), 110 Stat. 3009-627); see 8 C.F.R. § 3.43(b) (2002); 143 Cong. Rec. 25,544 (1997). The INS did not oppose Mr. Bronisz's motion to reopen his deportation proceedings, the motion was granted, and a hearing was held in August 2000.

Before the IJ, Mr. Bronisz argued that, if removed, he would suffer extreme hardship because he had lived in the United States for a substantial portion of his life and owned property and a business here. He said that he feared losing much of his investment in both his business and real estate holdings and stressed that his company generates substantial revenues and employs almost a dozen persons who could lose their jobs if he is forced to sell. Mr. Bronisz acknowledged that his mother, father and older brother still live in Poland but suggested that finding work there would be difficult because he has no transferable employment skills.

In an oral decision, the IJ found that, although Mr. Bronisz met the seven-year and good moral character requirements for suspension of deportation, he had not demonstrated that he would suffer extreme hardship if removed. The IJ reasoned that, even if Mr. Bronisz is forced to sell his property and business, his considerable assets "should be able to facilitate his transition to life in Poland." R.37. The IJ denied him suspension of deportation, as well as voluntary departure because of his earlier failure to depart and ordered him deported to Poland pursuant to the charge in his original 1990 order to show cause. In November 2002, the BIA summarily affirmed, see 8 C.F.R. § 3.1(e)(4); Mr. Bronisz now petitions this court for review.

II DISCUSSION

Mr. Bronisz challenges the IJ's conclusion that he did not establish extreme hardship. He argues that his removal would have a "devastating effect ... on his employees and on the community" because he has invested heavily in both through his business. Petitioner's Br. at 8. He contends that the IJ failed to consider his particular circumstances in light of what he describes as NACARA's "ameliorating" purpose. Id. at 9. Mr. Bronisz also challenges the IJ's decision not to grant him voluntary departure.

The Government contends that we lack jurisdiction to review the IJ's decision. According to the Government, Mr. Bronisz is subject to IIRIRA § 309(c)(4)(E), which limits judicial review of certain discretionary decisions under the INA. See IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626. Because the decision whether to grant suspension of deportation or voluntary departure is discretionary, the Government argues, we lack jurisdiction over Mr. Bronisz's petition for review.

A. IIRIRA and Judicial Review

Although the permanent provisions of IIRIRA did not take effect until April 1, 1997, IIRIRA nonetheless sets out certain rules that apply to proceedings commenced before that date. See IIRIRA § 309(a), 110 Stat. at 3009-625.¹ In other words, with few exceptions, aliens whose deportation proceedings commenced before April 1, 1997, continue to be governed by the law as it stood before IIRIRA's passage. See id. One of these exceptions, IIRIRA § 309(c)(4), applies to a case commenced before April 1, 1997, and "in which a final order of exclusion or deportation is entered more than 30 days after the date of enactment of this Act [September 30, 1996]."² Id. § 309(c)(4), 110 Stat. at 3009-626. For aliens who have a final order of deportation entered against them after October 30, 1996, § 309(c)(4) dictates that "there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of enactment of this Act)." Id. § 309(c)(4)(E), 110 Stat. at 3009-626. Mr. Bronisz does not contest that his applications for suspension of deportation and voluntary departure were requests for relief under the old (pre-IIRIRA) § 244 of the INA.³ See Useinovic v. INS, 313 F.3d 1025, 1033-35 (7th Cir.2002) (discussing relationship between NACARA and INA § 244); see also Tamas-Mercea v. Reno, 222 F.3d 417, 427 (7th Cir.2000) (considering voluntary departure); Pilch v. INS, 129 F.3d 969, 970-71 (7th Cir.1997) (discussing suspension of deportation). Therefore, if the November 2002 order is a "final order of exclusion or deportation entered more than 30 days after" September 30, 1996, in a case commenced before April 1, 1997, we lack jurisdiction over Mr. Bronisz's petition for review. See IIRIRA § 309(c)(4), 110 Stat. at 3009-626.

In this case, the IJ ordered Mr. Bronisz deported pursuant to the original charge in his order to show cause. The parties do not dispute, and we agree, that this is a "final order of deportation." See 8 U.S.C. § 1101(a)(47)(A) & (B) ("The term `order of deportation' means the order ... concluding that the alien is deportable or ordering deportation."). What remains to be seen is whether the November 2002 order is an order entered in a case that commenced before April 1, 1997.

B. Motion to Reopen

There is some disagreement among the circuits as to whether the filing of a motion to reopen is itself part of the underlying immigration proceedings or more appropriately characterized as the commencement of a new proceeding altogether. Compare Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 n. 2 (10th Cir.2001) (stating that a motion to reopen is part of earlier proceedings); Stewart v. INS, 181 F.3d 587, 593 (4th Cir.1999) (same); Vargas v. INS, 938 F.2d 358, 362 (2d Cir.1991) ("A motion to reopen or to reconsider is not a request for a new decision."), with Anin v. Reno, 188 F.3d 1273, 1275 n. 2 (11th Cir.1999) (noting circuit split but declining to adopt position), and Wright v. Ouellette, 171 F.3d 8, 12 (1st Cir.1999) (new proceeding). The First Circuit alone has held that the filing of a "motion to reopen is more akin to starting a new proceeding." Wright, 171 F.3d at 12. We never have acknowledged explicitly and rejected the view of the First Circuit; however, we have implicitly sided with the majority of circuits. We have observed that the filing of a motion to reopen is part of the earlier immigration proceedings. See Nwaokolo v. INS, 314 F.3d 303, 306 (7th Cir.2002) (per curiam) ("[The petitioner's] motion to reopen is part and parcel of her deportation proceedings."); Henry v. INS, 8 F.3d 426, 438 (7th Cir.1993) ("We therefore agree ... that a motion to reopen merely revives the earlier [proceedings] and does not constitute an entirely new request for discretionary relief.")....