This post examines a recent opinion from the U.S. Court of Appeals for the 3rd Circuit in which the court is reviewing a decision of
the Board of Immigration Appeals. Makwana v. Attorney General of the United
States, 611 Fed. Appx. 58 (2015).
The court begins the opinion by explaining that
[p]ro se petitioner Rajendrasinh
Makwana petitions for review of the Board of Immigration Appeals' (`BIA’) final
order of removal. We will grant the petition, and remand to the BIA for further
proceedings.
Makwana v. Attorney
General of the United States, supra.
You can, if you are interested, read more about the facts and prior proceedings
in the case in the articles you can find here and here, and the FBI press
release you can find here.
Then, as appellate courts usually do, the Court of Appeals
explained how, and why, this appeal arose:
Makwana is a citizen of India who was
admitted to the United States as an H–IB nonimmigrant worker with authorization
to remain until March 12, 2010. His then-employer, Marlabs, Inc. (`Marlabs’),
had previously filed a visa petition for a prospective immigrant employee (FormI–140) on his behalf. It was approved in November 2006, and Makwana filed
an application for adjustment of status to become a lawful permanent resident
(Form I–485) in 2007.
In January 2009, Makwana was indicted
in federal court for `computer intrusion’ in violation of former 18 U.S. Code §1030(a)(5)(A)(i) and (a)(5)(B)(i). On February 5, 2009, the United States Citizenship and Immigration Services (`USCIS’) notified him that his H–1B visa
had been revoked because Marlabs had withdrawn its petition on his behalf.
In July 2009, Makwana accepted a job
with a different company, and notified USCIS of his change of employment so
that he could transfer, or `port,’ his I–140 petition. See 8 U.S. Code § 1154(j) (stating that an I–140 petition “for an individual whose
application for adjustment of status . . . has . . . remained unadjudicated for
180 days or more shall remain valid with respect to a new job if the individual
changes jobs or employers if the new job is in the same or a similar
occupational classification”). However, USCIS revoked his I–140 petition on
September 29, 2009, because Marlabs withdrew its support.
Makwana v. Attorney
General of the United States, supra.
The Court of Appeals then goes on to explain that on
February 23, 2010, USCIS denied
Makwana's I–485 application for adjustment of status based on the September
2009 revocation of his I–140 petition. Makwana filed a motion with USCIS to
reconsider the denial of his I–485 petition, asserting that he had `ported’ his
valid I–140 visa. His motion was denied on November 8, 2010. USCIS agreed that
Makwana's I–140 visa remained valid, but determined that he was inadmissible
under `Section 212(a)(2)(A)(i)(I) of the Act for his conviction of Computer
Intrusion, a crime involving moral turpitude [(“CIMT”)], on October 4, 2010.’ (A.R.
000035.) On November 23, 2010, USCIS notified Makwana that his employment
authorization had been denied because he was not eligible due to the denial of
his I–485 petition.
On December 17, 2010, Makwana was
convicted of the computer intrusion charge and was thereafter sentenced to 41
months' imprisonment. (A.R. 000218–27.) DHS began removal proceedings in
December 2011, charging Makwana as removable under 8 U.S. Code §1227(a)(1)(B) (for remaining in the United States for longer than
permitted), 8 U.S. Code § 1227(a)(1)(C)(i) (for failing to maintain
or comply with the conditions of his nonimmigrant status), and 8 U.S. Code § 1227(a)(2)(A)(i)(I) (for being convicted of a CIMT committed within five
years after admission, for which a sentence of one year or longer may have been
imposed). Makwana conceded the first two charges and argued only that his
conviction was not for a CIMT.
Makwana v. Attorney
General of the United States, supra.
The court then describes what happened next, noting, initially,
that the
Immigration Judge (`IJ’) sustained all
charges of removability, and the BIA dismissed Makwana's appeal. We then
granted Makwana's petition for review after determining that the BIA
improperly applied the modified categorical approach to determine that
Makwana's conviction was a CIMT. We vacated the BIA's ruling that Makwana was
removable for having been convicted of a CIMT, and remanded the case for
further proceedings. Makwana v. Att'y Gen., 543 Fed.Appx. 186
(U.S. Court of Appeals for the 3rd Circuit 2013).
On remand, Makwana asserted that his
offense did not constitute a CIMT, and also requested that the BIA remand the
case to the IJ for adjudication of his application for adjustment of status, as
he claimed that he is eligible for such relief because he has a valid I–140 petition,
and because a visa is immediately available to him. In November 2014, the BIA
determined that Makwana was not removable under 8 U.S.Code §1227(a)(2)(A)(i), as his offense was not a CIMT. However, it did not alter
its decision that Makwana remained removable under 8 U.S. Code §§1227(a)(1)(B) and (a)(1)(C).
The BIA then considered Makwana's
request to remand the case to the IJ so that he could pursue his application
for adjustment of status. The BIA explained that Makwana believed that he had a
valid, approved employment-based visa petition (his I–140), because he could `port
that visa petition to his subsequent employer under 8 U.S. Code § 1154(j).’
In determining that that this avenue of relief was not available to Makwana,
the BIA relied on the following facts: (1) he was fired by Marlabs in January
2009, (2) his I–140 petition was revoked on February 5, 2009, and (3) he did
not specify when he was hired by his next employer.
Makwana v. Attorney
General of the United States, supra.
It went on to explain that the “BIA then stated” that,
`[h]aving not asserted and shown that
he was hired within the narrow time frame between his termination by the
petitioning employer and the revocation of the visa petition, he has not shown
that he would be able to port the visa petition even if it were otherwise
portable under section 204(j) of the Act. Thus, he has not shown that he has a
visa immediately available, and is not eligible for adjustment of status. We
will therefore deny the motion to remand. (A.R. 000041.)’
Makwana thereafter filed a timely
motion for reconsideration, arguing that the BIA had relied on a factual error
in denying his motion to remand. In particular, he asserted that the BIA's
statement that his I–140 petition had been revoked on February 5, 2009, was
incorrect, as it had actually not been revoked until September 29, 2009.
Further, he asserted that he had been hired by another company before his I–140
petition had been revoked, and that the basis for the BIA's decision that he was
not eligible to port his visa—i.e., his purported failure to show that he had
been hired between his termination and the revocation of his visa—was mistaken.
On February 3, 2015, the BIA denied
Makwana's motion for reconsideration. The BIA did not acknowledge Makwana's
arguments and instead merely stated without explanation that he did not `reveal
a factual or legal aspect of [his] case that was improperly overlooked,’ and he
did not `present a new argument that persuade[d] it to alter’ its prior decision.
(A.R. 000005.)
Makwana v. Attorney
General of the United States, supra.
After noting that “Makwana has now filed a petition for
review, which the Government opposes”, the Court of Appeals explains that
[w]e have jurisdiction to review final
orders of the BIA pursuant to 8 U.S. Code § 1252. Here, we have
jurisdiction over only the BIA's decision denying Makwana's motion to
reconsider. See Stone v. INS, 514 U.S. 386 (1995) (holding
that a timely motion to reopen or reconsider does not toll the deadline
for seeking review of the BIA's underlying removal order). We review the BIA's
denial of reconsideration for abuse of discretion and will not disturb it
unless it was `arbitrary, irrational, or contrary to law.’ Borges v.
Gonzales, 402 F.3d 398 (U.S. Court of Appeals for the 3d Circuit 2005).
Makwana v. Attorney
General of the United States, supra.
It went on to explain that a
motion to reconsider before the BIA is
a `request that [it] reexamine its decision in light of additional legal
arguments, a change of law, or perhaps an argument or aspect of the case which
was overlooked.’ In re Ramos, 23 I & N Dec. 336, 338 (BIA
2002) (en banc) (quotation marks omitted). Such motions shall `state the
reasons for the motion by specifying the errors of fact or law in the prior . .
. decision and shall be supported by pertinent authority.’ 8 C.F.R. §1003.2(b)(1); see 8 U.S. Code § 1229a(c)(6)(C).
Makwana v. Attorney
General of the United States, supra.
The Court of Appeals then outlined its ruling in the case,
noting, first, that
[h]ere, Makwana's motion to reconsider
was based on a factual error made by the BIA when it denied his motion to
remand. That is, he argued—and submitted evidence in support thereof—that
the BIA erred by stating that his I–140 visa was revoked on February 5, 2009,
when, in fact, it was revoked on September 29, 2009. Makwana's argument was
correct, a point that the Government concedes. However, it argues that this was
not a significant error warranting reconsideration.
We disagree. The error concerning the
date of the I–140 petition's revocation was key to the BIA's determination that
he could not “port” his visa, and thus that he did not have `a visa immediately
available to him, and is not eligible for adjustment of status.’ Because of the
erroneous determination that his petition was revoked on February 5, 2009, and
its factual determination that he had not obtained a new job before that date,
the BIA declined to remand Makwana's case to the IJ.
Thus, the arguments in Makwana's motion
to reconsider concerning the date of the revocation of his I–140 visa were not
misplaced, and the BIA abused its discretion by denying the motion without even
acknowledging, much less addressing, these arguments. Further, although the
Government correctly argues that immigration proceedings are subject to
harmless error analysis, it is not applicable here, as we cannot say that `it
is highly probable that the error did not affect the outcome of the case.’ See Yuan
v. Att'y Gen., 642 F.3d 420 (U.S. Court of Appeals for the 3d Circuit 2011).
In particular, we decline to address the Government's alternative arguments in
the first instance.
Makwana v. Attorney
General of the United States, supra.
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