July 29, 2013
FABIAN RANGEL-PEREZ, Petitioner,
ERIC H. HOLDER, JR., United States Attorney General, Respondent.
Petition for Review
Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
Timothy M. Tymkovich Circuit Judge
Fabian Rangel-Perez, a citizen and national of Mexico, appeals the final administrative removal order (FARO) issued by an official of the Department of Homeland Security (DHS). The FARO was issued to Mr. Rangel as an alien without lawful residency who had been convicted of an aggravated felony. See 8 U.S.C. § 1228(b). The Attorney General has filed a motion to remand the case to DHS for further proceedings. Mr. Rangel opposes the motion. We grant the motion to remand.
The Attorney General requests a remand in the interests of justice to allow DHS "to reconsider its decision regarding removability and to proceed under expedited removal procedures." Aplee. Br. at 7. The Attorney General represents that on remand, DHS will either "(1) issue a new expedited removal order pursuant to 8 U.S.C. § 1228; or (2) initiate removal proceedings before an immigration court pursuant to 8 U.S.C. § 1229a." Id. at 8.
A remand "shows proper respect for agency decision making, enables the [agency] to respond to emerging case law in the courts of appeals, and comports with Supreme Court guidance." Lin v. U.S. Dep't of Justice, 473 F.3d 48, 54 (2d Cir. 2007) (per curiam) (citing Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006) (in turn citing Lawrence v. Chater, 516 U.S. 163, 165-74 (1996) (per curiam))). Principles governing judicial review of administrative action generally permit the court to "giv[e] an administrative body an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attacked as invalid." Ford Motor Co. v. NLRB, 305 U.S. 364, 375 (1939). If the agency does not rule in his favor, Mr. Rangel may again seek judicial review. Cf. Martinez-Marroquin v. Gonzales, 489 F.3d 778, 778 (6th Cir. 2007) (noting that in remanding to the Board of Immigration Appeals, "[a] remand will not . . . result in the loss of the petitioner's right to judicial review"). Mr. Rangel "is cautioned that if the [agency] does not rule in his favor, a new timely petition for review must be filed." Id.
The motion for remand is granted.