Gregory GELMAN, Petitioner, v. John ASHCROFT, Respondent, 298 F.3d 150

PER CURIAM. I. Petitioner Gelman seeks review of a decision of the Board of Immigration Appeals (“BIA”) upholding the decision of an immigration judge finding that Gelman, who was convicted in May 1988 of first-degree arson, was deportable as an alien convicted of an aggravated felony at any time after entry, pursuant to

section 602 of the Immigration Act of 1990 (“IMMAct”), Pub.L. No. 101-649, 104 Stat. 4978, 5077-82 (Nov. 29, 1990), and ordering Gelman removed from the United States. We remand this matter to the BIA to consider in the first instance the impact of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), on the retroactive application of IMMAct § 602 in the instant case. II. As we observed in Bell v.

Reno, 218 F.3d 86, 89 (2d Cir.2000), “[i]n the wake of [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”) ], [the Immigration and Nationality Act (“INA”) ] § 242 does not allow us to review any final removal order against an alien who is deportable under, among other provisions, INA § 237(a) (2)(A)(iii).” Bell, 218 F.3d at 89 (citing 8 U.S.C. § 1252(a)(2)(C)). In the instant case, this jurisdictional bar is predicated in part upon whether Gelman is deportable under one of the enumerated offenses in INA § 237(a)(2)(A)(iii). See Bell, 218 F.3d at 89.

Thus, as an initial matter, “[w]e have jurisdiction to determine whether this jurisdictional bar applies, and we may thus review whether [Gelman] satisfies the[ requisite] jurisdictional facts.” Id.; see also Kuhali v. Reno, 266 F.3d 93, 100 (2d Cir.2001) (“Our authority to address such ‘jurisdictional facts’ stems not from Congresses] creation of a particular remedy, but rather from the inherent jurisdiction of

Article III federal courts to determine their jurisdiction.”). As with the petitioner in Bell, our jurisdictional analysis requires us to consider whether Gelman’s aggravated felony conviction renders him deportable, which, in turn, depends upon whether IMMAct § 602 operates retroactively. See 218 F.3d at 90. In Bell, we observed that “[t]his [analysis] requires us to consider [the petitioner’s] substantive argument, which is that the prospective temporal limitation on aggravated felony deportations set forth in [the Anti Drug Abuse Act of 1988 (“ADAA”)] § 7344(

b) was not affected by the enactment of IMMAct § 602.” 218 F.3d at 90. Thus, the answer to the retro-activity question arguably controls our jurisdictional analysis. See id. (noting need to consider petitioner’s substantive argument about temporal limitation of IMMAct to answer jurisdictional question of whether petitioner’s aggravated felony conviction rendered him deportable). We note that although remand in the instant case serves the dual purpose of (1) informing our analysis of whether we have jurisdiction to consider Gelman’s petition and (2) giving the BIA an opportunity to consider whether, under St.

Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, the IMMAct operates retroactively, this fact does not transform our remand for the purpose of resolving the jurisdictional question into an acceptance of jurisdiction over the merits of the appeal. See Kuhali, 266 F.3d at 100-01 (“[T]o say that a court possesses the authority to ascertain its jurisdiction over a matter is not tantamount to saying that the legislature has designated the court as a forum for resolution on the merits of those issues that happen to underlie the jurisdictional inquiry.”).

To the contrary, remand for consideration of the retroactivity issue by the BIA is entirely appropriate under our “jurisdiction to determine whether th[e] jurisdictional bar applies,” Bell, 218 F.3d at 89, and does not constitute taking jurisdiction for purposes of a decision on the merits of the case. See 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3536, at 535 (2d ed. 1984) (“ ‘Jurisdiction to determine jurisdiction’ refers to the power of a court to determine whether it has jurisdiction over the parties to and the subject matter of a suit.”).

In Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir.1994), we declined to address an ineffective assistance of counsel claim based on a failure to present evidence “until after the BIA has an opportunity to consider it” on the ground that “for prudential reasons, ineffectiveness claims should be decided by the BIA in the first instance, [as] this ‘will avoid any premature interference with the agency’s processes and, in addition to affording the parties and courts the benefit of the agency’s expertise, it will compile a record which is adequate for judicial review.’ ” Id. (quoting Castaneda-Suarez v.

INS, 993 F.2d 142, 145 (7th Cir.1993) (one set of internal quotation marks omitted)); see also Esposito v. INS, 987 F.2d 108, 112 (2d Cir.1993) (remanding to BIA for consideration in the first instance of two legal issues upon which it had not previously ruled). We believe that the same prudential considerations apply in the instant case as well, where St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, which was decided June 25, 2001, post-dates the decision of the BIA on May 17, 2001 that is the subject of this appeal. Since the BIA has never had the opportunity to consider whether, under St.

Cyr, IMMAct § 602 operates retroactively, we “refrain from deciding [the claim] until after the BIA has an opportunity to consider it” so as to “avoid any premature interference with the agency’s processes and, in addition to affording the parties and courts the benefit of the agency’s expertise, [permit a] complication of the] record which is adequate for judicial review.” Arango-Aradondo, 13 F.3d at 614 (internal quotation marks omitted). ill. Accordingly, the judgment of the BIA is hereby vacated and the cause is remanded for consideration in the first instance of the impact of INS v.

St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, on the retroactive application of IMMAct § 602 in the instant case. . The dissent suggests that simply deciding the substantive issue in this case without first remanding to the BIA for consideration in the first instance of the impact of St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, on the retroactive application of IMMAct § 602 is somehow the more 'prudential” approach, post at [7]-indeed, the dissent ascribes to the majority a lack of "respect for the federal courts' status as courts of limited jurisdiction,” post at 154.

We disagree and deny this unwarranted ascription. In remanding, we are doing nothing more than following a routine procedure for addressing an issue that has not received consideration by the initial decision-maker, whether it is a district court or an administrative agency like the BIA. We see no reason to abandon this cautious and unremarkable method of proceeding in the instant case.

The fact that this case will require consideration of Second Circuit precedent in light of recent Supreme Court case law — i.e., whether Bell, 218 F.3d 86, survived St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (and whether we answered this question already in Kuhali, 266 F.3d 93)— does not warrant depriving the BIA of an opportunity to have the first chance to consider its own legal determinations in light of new legal authority.

Were the tribunal of first instance a district court, rather than the BIA, we would almost invariably refrain from immediately interfering and readily accord the district court the courtesy of reconsideration in the first instance. Simply stated, the BIA should have an opportunity, in light of new legal authority, (1) to construe a statute that it enforces and (2) to reconsider its prior determination in this case. The dissent asserts that we do not cite cases to support remand to the BIA “in the face of questionable jurisdiction” to order this remand. Post at 154.

However, our reasoning and citations throughout the opinion clearly explain the legal basis for our jurisdiction to remand this case as part of our inquiry into whether we in fact have jurisdiction over Gel-man's petition.

The dissent's disagreement with that analysis, and its characterization of that analysis as “questionable jurisdiction,” does not, by virtue of its articulation, render our jurisdiction "questionable." Moreover, as the discussion in our opinion makes clear, Arango-Aradondo, 13 F.3d at 614, and Esposi-to, 987 F.2d at 112, are cited in support of our conclusion that remand to the BIA is appropriate to allow the BIA an opportunity to consider in the first instance legal matters that it has not addressed.

Contrary to the dissent's suggestion in its footnote three then, and as our discussion makes plain, these cases are not cited as examples of cases in which this Court has remanded to the BIA as part of a jurisdictional inquiry. Finally, the dissent observes that “[t]he government ... did not request that we remand so that the BIA could consider the effect of St. Cyr, and when asked at oral argument, counsel for the government specifically denied any desire for us to do so (as did counsel for petitioner).” Post at [10].

However, at the outset of its argument, the government stated that it agreed with Gelman that since the BIA in this case relied on Bell expressly in its decision, “the Court's direction [of the case] to the BIA would be the most helpful ” and further stated that "if the Court deems it more prudent to go to the BIA first, then that is entirely appropriate as well.” (Emphases added).