As Amended December 17, 2015.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Mary P. Holper, Director, Boston College Legal Services LAB, Immigration Clinic, for petitioner.
Jem Colleen Sponzo, with whom Francis W. Fraser, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Manny D. Vargas, Trina Realmuto, and Khaled Alrabe, on brief for the National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project, amici curiae in support of petitioner.
Philip L. Torrey, on brief for Harvard Immigration and Refugee Clinical Program, Harvard Law School, amicus curiae in support of petitioner.
Before Torruella, Lynch, and Kayatta, Circuit Judges.
LYNCH, Circuit Judge.
Inconsistent characterization of the governing law by the immigration authorities and insufficient analysis by the Board of Immigration Appeals (" BIA" ) lead us, in an abundance of caution, to remand this petition to the BIA.
Lizbeth Patricia Velerio-Ramirez (" Valerio" ), a native and citizen of Costa Rica, petitions for review of an order of the BIA denying her application for withholding of removal. Her petition contends that the BIA erred in upholding the immigration judge's (" IJ" ) determination that her conviction for aggravated identity theft was a " particularly serious crime" rendering her ineligible for withholding of removal under 8 U.S.C. § 1231(b).
However, Valerio is not in fact in removal proceedings subject to 8 U.S.C. § 1231. The Immigration and Naturalization Service (" INS" ) placed Valerio in deportation -- not removal -- proceedings in 1991. By the time the Department of Homeland Security (" DHS" ) took action in Valerio's case in 2011, however, Congress had replaced deportation with removal, a process governed by a different set of statutes, and DHS mistakenly regarded Valerio as being in removal proceedings. DHS leveled removability charges against her, and the IJ's decision applied removal law in denying her application for relief.
In its 2014 denial of Valerio's appeal of the IJ's decision, the BIA identified the error and stated that Valerio was in deportation proceedings governed by 8 U.S.C. § 1253. It also said that the law governing the two proceedings was the same. But the statutory language is not the same, a fact not acknowledged by the agency. The version of former 8 U.S.C. § 1253(h) governing Valerio's claim for withholding of deportation contains an additional provision, § 1253(h)(3), which was added by Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) § 413(f) and was nullified only a few months later in 1996 when Congress replaced deportation with removal. The language of § 1253(h)(3) is not present in the withholding of removal statute, 8 U.S.C. § 1231(b)(3), or earlier versions of 8 U.S.C. § 1253(h).
Here, the BIA's review of Valerio's application not only omitted any reference to § 1253(h)(3) but also failed to acknowledge its existence or discuss how it applies. Given these circumstances, and the additional fact that the BIA has not spoken on how § 1253(h)(3) applies to non-aggravated felons such as Valerio, we do not reach the merits of Valerio's petition out of deference to the agency. It is not our place to interpret in the first instance a statute which the BIA has been charged with interpreting. We reject the government's position that the petitioner has precluded remand because she failed to exhaust the issue of applicable law; the BIA itself raised the issue, and that suffices. We also reject the government's argument that remand is inappropriate because this court in Choeum v. INS,129 F.3d 29 (1st Cir. 1997) already decided what there ...