United States v. 2008-06-19 | 04-75903 | LEPPIND VMUKASEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 OLIVER LEPPIND,
Petitioner, No. 04-75903
v. Agency No.
 A79-406-882MICHAEL B. MUKASEY, Attorney
General, ORDER
Respondent. 
Filed June 20, 2008
Before: Kim McLane Wardlaw and Sandra S. Ikuta,
Circuit Judges, and Jeremy D. Fogel,* District Judge.
Order;
Dissent by Judge Ikuta
COUNSEL
David Landry, San Diego, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Leslie McKay, Senior Litigation Counsel, Terri J. Scadron,
Assistant Director, Arthur L. Rabin, Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
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ORDER
This case is referred to the Ninth Circuit Mediation Office
to explore a possible resolution through mediation. Because a
majority of the panel has concluded that an intervening case,
Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), is relevant
to the determination of the petition, but would remand for the
Board of Immigration Appeals (BIA) to have the opportunity,
which it previously did not, to apply the principles of Bona to
the facts presented in this petition in the first instance, the
majority accedes to the government’s preference for media-
tion over remand.1 Given the parties’ agreement to alternative
dispute resolution, “the strong judicial policy that favors set-
tlements of disputes,” Guerrero v. RJM Acquisitions LLC,
499 F.3d 926, 939 (9th Cir. 2007) (internal quotation marks
omitted), and that the Ninth Circuit Mediation Office has
proven remarkably effective in resolving, to the satisfaction of
both petitioners and the government, issues arising in immi-
gration petitions, this mediation referral order meaningfully
serves the goals of judicial economy and fairness. To fully
decide the question of Bona’s applicability, as our dissenting
colleague would desire, would be to substitute ourselves for
the BIA as the decisionmaking body. See INS v. Ventura, 537
U.S. 12, 16-17 (2002).
Submission of this matter is therefore vacated until 60 days
from the date of this order. Vacatur may be extended by fur-
ther order of this panel or the Chief Circuit Mediator.
IT IS SO ORDERED.
1During oral argument, counsel for the government stated that “should
the court find that Bona is . . . somehow pertinent to the petitioner’s case,
then at that point, we would submit that mediation may be appropriate.”
We applaud government counsel for its willingness to resolve this matter
through mediation, eliminating the unnecessary expenditure of further
judicial and administrative resources.
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IKUTA, Circuit Judge, dissenting:
At oral argument, the government agreed to mediation only
if the panel determined that Bona v. Gonzales, 425 F.3d 663
(9th Cir. 2005), impacted this case. The panel now submits
this case to mediation without explaining why Bona is rele-
vant. Because in my view the change in the law affected by
Bona has no impact on Leppind’s case, I dissent from the
order referring this case to mediation.
I
In Bona, an arriving alien in a removal proceeding
attempted to file a new application for adjustment of status
with the immigration judge (IJ).1 (The application filed by the
petitioner before she was put in removal proceedings had
been denied.) The IJ held that 8 C.F.R. § 245.1(c)(8) pre-
cluded him from considering the petitioner’s application. That
regulation stated, in pertinent part:
(c) Ineligible aliens. The following categories of
aliens are ineligible to apply for adjustment of status
to that of a lawful permanent resident alien under
section 245 of the Act:
. . .
(8) Any arriving alien who is in removal
proceedings . . . .
8 C.F.R. § 245.1 (2005). The petitioner challenged this regu-
lation as conflicting with 8 U.S.C. § 1255(a), which provides
that “[t]he status of an alien who was inspected and admitted
or paroled into the United States . . . may be adjusted by the
18 C.F.R. § 1.1(q) defines “arriving alien” as “an applicant for admis-
sion coming or attempting to come into the United States at a port-of-entry
. . . .”
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Attorney General, in his discretion and under such regulations
as he may prescribe . . . .” We agreed. Noting that 8 C.F.R.
§ 245.1 precluded the class of arriving aliens from applying
for adjustment of status in any form, including by a direct
application to a U.S. Citizenship and Immigration Services
(USCIS) district director, we held:
[I]t is this aspect of section 245.1(c)(8) which proves
fatal. By entirely excluding a category of aliens from
the ability to apply for adjustment, who by statute
are eligible to apply for such relief, the regulation
goes beyond simply regulating the manner in which
such applications shall be made or the discretionary
decision to grant such relief. Rather, the regulation
strips statutory eligibility for such relief in any form
from this entire category of aliens once they are
placed in removal proceedings.
Bona, 425 F.3d at 670. In light of this fatal flaw, we struck
down § 245.1 as conflicting with 8 U.S.C. § 1255(a).2
Because the petitioner had been precluded from filing an
application for adjustment of status, we granted her petition
for review and remanded her case to the BIA for further pro-
ceedings. Id. at 670-71.
II
Bona has no applicability here, because Leppind was not
deprived of the ability to file an application for adjustment of
status. While in the United States on an expired visa, Leppind
married a U.S. citizen and then filed an adjustment of status
application with the USCIS. While this application was pend-
ing, Leppind traveled to Mexico, but was stopped at the bor-
2Subsequently, the Attorney General amended the regulation. See Eligi-
bility of Arriving Aliens in Removal Proceedings to Apply for Adjustment
of Status and Jurisdiction to Adjudicate Applications for Adjustment of
Status, 71 Fed. Reg. 27,585, 27,586 (May 12, 2006).
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der when he attempted to reenter the United States. On his
third attempt to reenter the United States, Leppind approached
a border patrol agent and stated “citizen.” Leppind was subse-
quently put into removal proceedings.
Unlike the alien in Bona, Leppind’s adjustment of status
application was pending throughout Leppind’s removal and
asylum proceedings. The IJ granted three continuances of
Leppind’s removal hearing in part to allow the Service further
time to adjudicate the adjustment of status application. After
13 months, with the government continuing to delay in pro-
cessing Leppind’s application, the IJ finally decided to pro-
ceed with the removal and asylum hearing, ultimately
concluding that Leppind was removable and not entitled to
relief.
The IJ did not have the benefit of Bona in deciding Lep-
pind’s case; that decision was issued while Leppind’s petition
for review was pending before us. However, even if Bona had
been decided before the IJ ruled, there is no basis for conclud-
ing that Bona’s invalidation of § 245.1 would have affected
the IJ’s decision. First, and most obviously, Bona invalidated
a regulation that precluded an arriving alien in a removal pro-
ceeding from applying for adjustment of status. However,
Leppind was not precluded from applying for adjustment of
status; rather, Leppind’s adjustment of status application was
pending before, during and after his hearing before the IJ. On
the facts of this case, Leppind simply is not among the group
of arriving aliens in removal proceedings who found them-
selves stripped of “statutory eligibility for such relief in any
form.” Bona, 425 F.3d at 670. Moreover, there is no hint in
the record that Leppind’s adjustment of status application was
affected by the existence of the invalidated regulation. Rather,
the Service indicated that its disinclination to grant Leppind
adjustment of status was based on its conclusion that Leppind
had made a false claim of citizenship.
Nor do the IJ’s statements that he lacked jurisdiction over
Leppind’s pending application require a different conclusion.
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Had Leppind been placed in removal proceedings after Bona
invalidated § 245.1, the IJ would still lack jurisdiction over
his adjustment application. See 8 C.F.R. § 245.2(a)(1) (2007)
(providing that USCIS, not the IJ, has jurisdiction to adjudi-
cate an application for adjustment of status filed by an alien,
except for situations not applicable here); see also Brito v.
Mukasey, 521 F.3d 160 (2d Cir. 2008). Nothing in Bona sug-
gests that requiring an alien to file an adjustment of status
application with the district director rather than with the
immigration judge is problematic or conflicts with a statute.
See 425 F.3d at 670.
The evil remedied by Bona was the deprivation of any ave-
nue for review of an application for adjustment of status.
Because Leppind had filed his application before being placed
in removal proceedings, he was not subject to that evil and
thus is not entitled to any relief flowing from our decision in
Bona. Presumably, the reason Leppind failed to raise any
argument under Bona until requested to do so by the majority
is because Bona is inapplicable to Leppind’s case.
Turning to the two issues actually raised by Leppind in his
opening brief, namely whether the IJ and BIA erred in deny-
ing him asylum and withholding of removal relief, I would
deny the petition. Substantial evidence supports the agency’s
determination that Leppind has failed to establish eligibility
for asylum and withholding of removal. See Singh v. Gon-
zales, 491 F.3d 1019, 1023 (9th Cir. 2007).
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