IMMIGRATION LAW - RIPE ENOUGH TO PICK: APPEALS COURT HOLDS IT CAN HEAR PREMATURE APPEAL OF A BOARD OF IMMIGRATION APPEALS DECISION.

• Author: Panepinto, Cameron

IMMIGRATION LAW--RIPE ENOUGH TO PICK: APPEALS COURT HOLDS IT CAN HEAR PREMATURE APPEAL OF A BOARD OF IMMIGRATION APPEALS DECISION--Martinez v. Ban, 941 F.3d 907 (9th Cir. 2019).

The Immigration and Nationality Act (INA) provides that aliens may appeal decisions that are considered "final orders of removal" levied by the Board of Immigration Appeals (BIA). (1)

Further, there is currently a circuit split as to whether an appeal of a BIA's decision can be heard prematurely by an appeals court. (2) In Martinez v. Barr? the United States Court of Appeals for the Ninth Circuit, as a matter of first impression, reviewed whether the court has jurisdiction to review the BIA's denial of the plaintiff's motion to reopen (first MTR). (4) The Ninth Circuit held that it does have jurisdiction to review the plaintiff's appeal prematurely and that the appeal can ripen when the BIA reaches the final determination of a case, absent any prejudice to the government. (5)

Celia Diaz Martinez (Petitioner) was a 47-year-old El Salvadorian woman residing in the United States without legal status with five children who were United States citizens. (6) In February of 2007, the Petitioner was served with a Notice to Appear and subsequently brought into immigration custody for an alleged violation of section 212(a)(6)(A)(i) of the INA. (7) In June of 2010, after attending many hearings over three years, Petitioner and her counsel appeared before the immigration court where her counsel was personally served a notice of her next hearing, which would be a removal hearing. (8) On the same day, the Petitioner submitted a change of address form to the court and government, while the government issued an amended notice to appear to the Petitioner's old address. (9) Petitioner failed to appear at the "hearing, and the Immigration Judge (IJ) ordered her removed in absentia." (10)

In June of 2017, Petitioner's counsel challenged the removal proceedings by filing motions to stay and reopen the removal proceedings. (11) Approximately one week later, the IJ denied the Petitioner's motion and she subsequently appealed the denial to the BIA. (12) Awaiting review of her appeal, in August of 2017, the Petitioner "pro se filed a petition for review of the IJ's decision in the Ninth Circuit." (11) As a matter of first impression for the Ninth Circuit, the court held that "absent any prejudice to the government," while the Petitioner's petition for appeal of an immigration decision was premature, the petition may ripen upon a final disposition of the case by the BIA. (14)

Modern immigration law in the United States is derived, in part, from the INA and covers matters such as entry into the United States and deportation proceedings. (15) The INA allows non-citizens to petition an appeals court for judicial review of a BIA decision that is a final order of removal. (16) Over the years, the vagueness surrounding the phrase "final order of removal" created a circuit split with regard to the courts having jurisdiction to hear a premature appeal. (17)

The Second, Third, and Eleventh Circuits held that circuit courts do have jurisdiction over premature petitions for review. (18) The Second and Third Circuits both held that a premature petition for appeal can ripen and become reviewable once the BIA hands down its final order. (19) Later, the Eleventh Circuit came to a similar conclusion. (20) Despite later siding with the Second, Third, and Eleventh Circuits, initially the Ninth Circuit held a different stance on the issue. (21)

The Fifth and Sixth Circuits held that courts do not have jurisdiction over a premature petition for review and that it cannot ripen upon the final disposition of the matter by the BIA. (22)

The Fifth and Sixth Circuits split from their sister circuits because of their strict adherence to the deadlines provided in INA [section] 242. (23) The lack of uniformity across the circuits with regard to finality in the INA allows the circuits to reach different conclusions regarding the same question. (24)

In Martinez v. Ban, the United States Court of Appeals for Ninth Circuit found that the reasoning of the Second, Third, and Eleventh Circuits was persuasive and held that premature petitions for review of an IJ's order can ripen into an appeal that courts have jurisdiction to hear. (25) In the past the Ninth Circuit faced several cases involving non-final orders where the court found a premature petition ripens and jurisdiction to review. (26)

Here, the Ninth Circuit considered factually similar cases to Martinez from its sister circuits wherein "the BIA issued a reviewable final order prior to the court's consideration of any aspect of the petition for review." (27) The government relied on cases out of the Fifth and Sixth Circuits to argue that the Ninth Circuit did not have jurisdiction to review the Petitioner's case. (28)

Ultimately, the Ninth Circuit decided that due to the amount of commonalities between Martinez and persuasive case law that the court could "join those courts in holding that, absent any prejudice to the government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA." (29)

The Ninth Circuit properly applied persuasive case law to reach their decision despite having added to the lack of uniformity amongst the circuits regarding the issue of considering a premature petition for review of an immigration order. (30) The Ninth Circuit's existing case law allowed premature petitions to ripen and, therefore, applied similar reasoning in Martinez. (31) Appropriately, the court held that the rights of the petitioner are more important than procedural defects of the jurisdiction. (32)

The Ninth Circuit was correctly unpersuaded by the government's insistence on following the Fifth and Sixth Circuits to find that the court does not have jurisdiction to preside over a premature petition for review. (33) Additionally, Fifth and Sixth Circuit cases were less comparable to the case at hand in comparison to the Second, Third, and Eleventh Circuit cases. (34) Furthermore, the position raised by the government is less amenable to non-citizens seeking judicial review in the circuits. (35)

The lack of uniformity amongst the circuits in this split is due to the vagueness surrounding the meaning of "final order of removal" in the INA, which can result in life-changing consequences for non-citizens seeking judicial review. (36) One solution to resolving this conflict is to file a writ of certiorari with the Supreme Court of the United States so that the Court may establish a uniform rule. (37) Congress may also resolve the ambiguity in the language of the INA by enacting a new addition that more clearly defines "final order of removal." (38)

The United States Court of Appeals for the Ninth Circuit properly found that it had jurisdiction to review a premature petition for review upon a final disposition of the matter from the BIA. As a matter of first impression, the court was able to consider persuasive law from other jurisdictions that were already part of the circuit split on the issue. The Ninth Circuit properly sided with the Second, Third, and Eleventh Circuits because their cases fit best with the facts in Martinez and the Ninth Circuit's prioritization of an individual's rights.

(1.) See Immigration and Nationality Act (INA) [section] 242(a)(1); 8 U.S.C. [section] 1252(a)(1) (2018) (laying out general orders of removal). The INA provides for judicial review of a final order of removal. Id See also INA S 240(b)(4); 8 U.S.C. [section] 1229a(b)(4) (2018) (defining alien's rights in proceeding). The INA provides that an alien can be represented by counsel, have the ability to examine evidence against him or herself, and to present evidence in the proceeding, among other rights. Id. See also INA S 101(a)(3); 8 U.S.C.

The Board of Immigration Appeals (BIA) functions as an appellate body charged with the review of those administrative adjudications under the Immigration and Nationality Act (INA) that the Attorney General may by regulation assign to it. The Board will resolve the questions before it in a manner that is timely, impartial, and consistent with the INA and the regulations thereunder. In addition, the Board, through precedent decisions, will provide clear and uniform guidance to the Department of Homeland Security, the Immigration Judges, and the general public on the proper interpretation and administration of the INA and its implementing regulations. However, the BIA does not have authority to promulgate rules or policies other than for its internal operations; rather, it is adjudicatory body.

Id. Within the framework of the INA, the BIA plays a central role in immigration law. Id. See also Jack Wasserman, Representation of an Alien in Exclusion. Rescission and Deportation Hearings, 26 AM. JUR. TRIALS 327 [section] 6 (1979) (detailing composition of BIA). The BIA reports to the Deputy Attorney General and "is a quasi-judicial, non-statutory body of lawyers in the Department of Justice in Washington, D.C. composed of four members and a chairman, together with a staff of 13 attorneys." Id. See also Jesi J. Carlson et al., Finality and Judicial Review Under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform, 49 U. MICH. J.L. REFORM 635, 637 (2016) (explaining some confusion in text of INA). The INA does not clearly define "finality" nor "final order of removal" which allows for different courts to reach different conclusions on the same issue of finality. Id. See also About the Office, U.S. DEP'T OF JUST. (Aug. 14, 2018), https://www.justice.gov/eoir/aboutoffice (overviewing Executive Office for Immigration Review). Created by the Department of Justice (DOJ), the Executive Office for Immigration Review (EOIR) is an office within the DOJ. Id. The DOJ says "[t]he primary mission of the Executive Office for Immigration Review...