Singh-Bhathal

Opinion by Judge KOZINSKI; Dissent in part by Judge KOZINSKI; Dissent by Judge NOONAN.

We review a decision of the Board of Immigration Appeals that an Immigration Judge who gains jurisdiction over a deportation proceeding pursuant to 8 C.F.R. § 103.5 (a)(1) (1995) has authority to reconsider an order entered by the IJ who previously had jurisdiction over that proceeding.

I

On July 24, 1994, Gurcharan Singh-Kaur (Singh), a native and citizen of India, was taken into custody by the Immigration and Naturalization Service for entering the United States without inspection. The following day, Singh was served with an Order to Show Cause alleging he was deportable pursuant to 8 U.S.C. § 1251 (a)(1)(B) (1994). Singh posted bail and was released from INS custody on August 1. On August 5, the Office of the Immigration Judge in Phoenix, Arizona, sent a Notice of Hearing by certified mail to Singh’s address in Bellevue, Washington, informing him that he was required to appear at a November 30th deportation proceeding. Pursuant to advice he received from a private immigration consultant, Singh did not appear for his deportation hearing. Instead, he filed an application for asylum with the…

dissenting:

A single issue was presented to the Board of Immigrations Appeals (the Board): did an immigration judge (IJ) in Seattle have jurisdiction to correct a decision to reopen made by an immigration judge in Phoenix? The single issue before us is resolved by the regulations promulgated by the Immigration and Naturalization Service (the INS) itself. We, of course, defer to the agency’s own interpretation of its regulations but do not blindly accept an interpretation contradictory to their text. 8 C.F.R. § 242.22 (1995) provides as follows:

§ 242.22 Reopening or reconsideration^

Without ambiguity jurisdiction is conferred on an immigration judge to “reopen or reconsider any case in which he/she had made a decision.” No other judge is given this jurisdiction. No reference to § 103.5 is pertinent to reopening because it is “otherwise provided in this section,” viz., that reopening is to be decided by the immigration judge who made the original decision. No appeal to the BIA lies from this interlocutory order. Unless reconsideration is sought from the origi *949 nal immigration judge the reopening stands. Its soundness is not an issue for us.

What, then, is the meaning of…

dissenting in part:

The majority declines to review Singh's claim that 18 U.S.C. § 1252b does not bar asylum petitioners who seek to have their cases reopened, even though a member of the BIA made this very argument in dissent. Maj. op. at 946-947. In so doing, my colleagues take the requirement of administrative exhaustion beyond all reasonable bounds and foreclose judicial review of issues the agency had an opportunity to consider. The majority relies on Rashtabadi v. INS, 23 F.3d 1562 (9th Cir.1994), a case that is easily distinguishable. In Rashtabadi, neither the petitioner nor anyone else raised certain arguments before the BIA. In holding that we lacked jurisdiction to consider those arguments, we explained our rationale as follows:

Id. at 1567 (emphasis added) (citations omitted). Here, the BIA could well have "corrected any of the alleged procedural errors" simply by adopting the views expressed by the dissent.

Rashtabacli reflects the standard rationale for requiring exhaustion, which is to ensure that agencies are given first opportunity to rule on the issue:

Bernard Schwartz, Administrative Law § 8.30 (2d ed.1984) (footnotes omitted). Indeed, Rashtabadi noted that…