United States v. 2011-10-20 | 07-72858 | MYERS V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KENNETH MICHAEL MYERS,
No. 07-72858 Petitioner,
Agency No. v.  A030-772-080ERIC H. HOLDER JR., Attorney
General, ORDER
Respondent. 
Filed October 20, 2011
Before: Harry Pregerson, Dorothy W. Nelson, and
Sandra S. Ikuta, Circuit Judges.
Order;
Dissent by Judge Ikuta
ORDER
Mr. Myers’s motion to stay issuance of the mandate pend-
ing adjudication of his motion to reopen before the Board of
Immigration Appeals (BIA) is GRANTED. See Aguilar-
Escobar v. INS, 136 F.3d 1240, 1241 (9th Cir. 1998) (staying
the mandate until the petitioner’s application before the BIA
is disposed of); Alvarez-Ruiz v. INS, 749 F.2d 1314, 1316 (9th
Cir. 1984) (staying the mandate sixty days to allow time for
the petitioner to seek relief from the BIA and for such further
time as is required for disposition of the application before the
BIA); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir.
2000) (staying the mandate ninety days so that the petitioner
can file a motion to reopen before the BIA); Roque-Carranza
v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985) (staying the man-
date sixty days to allow time for the petitioner to file a motion
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to reopen before the BIA and once filed, staying the mandate
for such further time as is necessary for the disposition of the
motion by the BIA).
Should the BIA grant the motion to reopen, the mandate
will be stayed pending its disposition of the case. Should the
BIA deny the motion, the mandate will issue immediately.
The parties shall advise this court immediately upon the
BIA’s decision.
IKUTA, Circuit Judge, dissenting:
Once again a panel of this court elects to interfere with the
normal procedures of the Department of Homeland Security
and the applicable regulatory framework, and in the process
“provide[s] a windfall for an alien who happens to appeal to
this court, not available to aliens who do not happen to
appeal.” Valderrama v. INS, 260 F.3d 1083, 1086 (9th Cir.
2001).
This panel adjudicated the legal issues in Myers’s claim
and rendered its decision on October 8, 2010. The subsequent
petition for rehearing was denied, and Myers filed a petition
for a writ of certiorari with the Supreme Court. We granted
a request to stay the mandate during the pendency of that peti-
tion. Certiorari was denied on October 3, 2011. Myers has
received full consideration of his claims, and now the man-
date should issue accordingly.
Myers seeks to reopen his case with the BIA, citing
changes in the law. That is his right, as it would be the right
of any other similarly situated alien likewise affected by the
fundamental change of the law he cites. See 8 C.F.R.
§ 1003.2(c); see also In re G-D-, 22 I. & N. Dec. 1132, 1134
(BIA 1999) (sua sponte reopening may be warranted where
there is a manifest turn on the cited change in law).
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But the applicable regulations make clear that filing a
motion to reopen does not ordinarily stay the execution of a
decision made in a prior proceeding. Rather, the BIA, the
Immigration Judge, “or an authorized officer of the Service”
must specifically grant such a stay. See 8 C.F.R. § 1003.2(f).
These are the procedures established by the BIA and DHS
under the authority granted by Congress, procedures that
apply equally to every alien who ends up in Myers’s situation.
Myers, however, asks this court to interject itself into the
normal processes of the BIA, and grant a special dispensation
to this particular petitioner so that he will not face the pros-
pect of removal even if the BIA declines to issue a stay of
execution under its regulations. See 8 C.F.R. § 1003.2(f). The
majority grants Myers’s request as a matter of course, and
thus rewards Myers’s failure to follow the established proce-
dures under § 1003.2(f), even though instructions for doing so
are clearly printed on the form on which he submitted his
motion to reopen. Indeed, there is no indication that Myers
has even requested a stay from the BIA, relying instead upon
this court to be his protector.
Rather than providing any reasoning or basis for interfering
with agency procedures, the majority provides a string cite to
a handful of cases, mainly from the 1980s, that granted a sim-
ilar stay, likewise without reasoning or explanation of any
sort. Yet in the face of regulations promulgated in 1996 that
explicitly place the power to stay removal during the pen-
dency of a motion to reopen with the BIA, see 61 Fed. Reg.
18,900, 18,904 (Apr. 29, 1996) (codified at 8 C.F.R.
§ 1003.2(f)), the court has a duty to explain its authority and
reasons for overriding this rule. Instead, the majority’s reflex-
ive issuance of a stay frustrates the agency’s evenhanded
application of its regulatory scheme and raises separation of
power concerns. Moreover, it is unfair: it disadvantages aliens
who have not appealed to this court by giving special benefits
to those who have. See Valderrama, 260 F.3d at 1086.
I respectfully dissent.
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