The Ninth Circuit Court of Appeals today released an order in LEPPIND v. MUKASEY, No. 04-75903, an administrative appeal. The panel consisted of Kim McLane Wardlaw and Sandra S. Ikuta, Circuit Judges, and Jeremy D. Fogel, District Judge.
This case is referred to the Ninth Circuit Mediation Office to explore a possible resolution through mediation. Because a majority of the panel has concluded that an intervening case, Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), is relevant to the determination of the petition, but would remand for the Board of Immigration Appeals (BIA) to have the opportunity, which it previously did not, to apply the principles of Bona to the facts presented in this petition in the first instance, the majority accedes to the government’s preference for mediation over remand. Given the parties’ agreement to alternative dispute resolution, “the strong judicial policy that favors settlements of disputes,” Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 939 (9th Cir. 2007) (internal quotation marks omitted), and that the Ninth Circuit Mediation Office has proven remarkably effective in resolving, to the satisfaction of both petitioners and the government, issues arising in immigration petitions, this mediation referral order meaningfully serves the goals of judicial economy and fairness. To fully decide the question of Bona’s applicability, as our dissenting colleague would desire, would be to substitute ourselves for the BIA as the decisionmaking body. See INS v. Ventura, 537 U.S. 12, 16-17 (2002). Submission of this matter is therefore vacated until 60 days from the date of this order. Vacatur may be extended by further order of this panel or the Chief Circuit Mediator. IT IS SO ORDERED.. . .
IKUTA, Circuit Judge, dissenting:
At oral argument, the government agreed to mediation only if the panel determined that Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), impacted this case. The panel now submits this case to mediation without explaining why Bona is relevant. Because in my view the change in the law affected by Bona has no impact on Leppind’s case, I dissent from the order referring this case to mediation. I In Bona, an arriving alien in a removal proceeding attempted to file a new application for adjustment of status with the immigration judge (IJ). (The application filed by the petitioner before she was put in removal proceedings had been denied.) The IJ held that 8 C.F.R. Â§ 245.1(c)(8) precluded him from considering the petitioner’s application. That regulation stated, in pertinent part:
(c) Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act:
. . . (8) Any arriving alien who is in removal proceedings . . . . 8 C.F.R. Â§ 245.1 (2005). The petitioner challenged this regulation as conflicting with 8 U.S.C. Â§ 1255(a), which provides that “[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the. . .