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Viewing entries tagged
sua sponte
The First Circuit has determined that the Board of Immigration Appeals can use its sua sponte authority to reopen for a non-citizen to pursue NACARA relief, rejecting the argument that a motion to reopen under 8 C.F.R. § 1003.43(e)(1) is the only available means for reopening for NACARA relief.
The full text of Mancia v. Garland can be found here:
The Board of Immigration Appeals has determined that a respondent who moves to reopen proceedings to seek cancellation of removal for non-lawful permanent residents must make a prima facie showing of exceptional and extremely unusual hardship to his qualifying relatives. In addition, the issuance of administratively final removal order does not stop the accrual of physical presence for cancellation purposes. Finally, the BIA declined to determined if the decision in Niz Chavez represents a fundamental change in law warranting sua sponte reopening.
The full text of Matter of Chen can be found here:
The Ninth Circuit has determined that the agency lacks any sua sponte authority to reopen a reinstated removal order, even if a petitioner is alleging a gross miscarriage of justice.
The full text of Bravo-Bravo v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/18/20-71042.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/02/20-71042.pdf
The Ninth Circuit has determined that the regulatory departure bar does not bar the agency from sua sponte reopening a removal order.
The full text of Balerio Rubalcaba v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/02/17-70845.pdf
The Seventh Circuit has sustained the appeal of the denial of an untimely, number-barred sua sponte motion to reopen. In so doing, the court noted that the Board of Immigration Appeals misinterpreted the petitioner’s motion to reopen to be solely for the purpose of adjustment of status, when in fact, he had also challenged whether he was removable as charged.
The full text of Salazar-Marroquin v. Barr can be found here:
The Tenth Circuit has ruled that the regulatory departure bar does not prevent the Immigration Judge from exercising his sua sponte authority to reopen proceedings. The departure bar applies only to a motion to reopen filed by one of the parties, which differs from an Immigration Judge’s authority to sua sponte reopen proceedings. ‘Thus, the IJ may move sua sponte to reopen removal proceedings even when either or both the ninety-day time bar or the post-departure bar would defeat an alien’s ‘motion to reopen’.”
The full text of Reyes-Vargas v. Barr can be found here:
The Ninth Circuit affirmed the Board of Immigration Appeals’ (BIA) refusal to exercise its sua sponte authority to reopen or reconsider the removal order of a deported lawful permanent resident after the Ninth Circuit determined that her conviction was not a deportable offense. The court declined to adopt the “settled course of adjudication” doctrine (which would have required the court to recognize the BIA has a settled policy of reopening cases under similar circumstances), finding that the doctrine is barred by the general rule that a federal court has no jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. “Because the jurisdictional bar still applies, we have no authority to consider the consistency of the BIA’s decisions, or to even begin comparing the circumstances of the present case against the circumstances in past cases where sua sponte relief was granted.”
The court also found that the Board’s refusal to exercise equitable tolling was reasonable when the petitioner could have raised the same arguments on appeal that eventually were recognized by the Ninth Circuit in later case law. “We infer this to mean that, regardless of whether the change in law effected by Lopez-Valencia was ‘fundamental,’ Lona was not entitled to equitable tolling because (1) she failed to act with due diligence in discovering and raising the error asserted by Lopez-Valencia before the BIA and later, successfully, before us; and (2) she failed to do so despite the lack of impediments ‘to obtain[ing] vital information bearing on the existence of the claim.’ We agree.”
The full text of Lona v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/15/17-70329.pdf
The First Circuit has determined that it has jurisdiction to review constitutional claims or errors of law that arise in the agency’s adjudication of sua sponte motions to reopen. The Court also found that the “BIA departed from its settled course of accepting full and unconditional pardons granted by a state's supreme pardoning authority when the pardon is executive, rather than legislative, in nature. The BIA's policy has been shaped by its prior decisions accepting pardons from authorities whose powers were conferred by statute and rejecting pardons that were not deliberative, even when constitutionally guaranteed. From these BIA decisions, it is evident that "executive in nature" does not require the power to pardon be presently inscribed in a state's constitution. As the BIA premised its denial of Thompson's motion to reopen on the insufficiency of a Connecticut pardon for purposes of the Pardon Waiver Clause, we remand to the BIA to determine whether to reopen Thompson's immigration proceedings sua sponte against the correct legal background.”
The full text of Thompson v. Barr can be found here:
http://media.ca1.uscourts.gov/pdf.opinions/18-1823P-01A.pdf
The Eighth Circuit has declined to recognize any exception to the general rule that the denial of a sua sponte motion to reopen is non-reviewable. Although the court recognizes that three other circuits permits review of these decision if the agency relied on an incorrect legal premise, the court declined to adopt that rationale.
The full text of Vue v. Barr can be found here:
https://ecf.ca8.uscourts.gov/opndir/20/03/182595P.pdf
The Ninth Circuit has upheld the Board of Immigration Appeals’ denial of a motion to reopen for a petitioner whose drug conviction was vacated by the criminal court.
“Menendez-Gonzalez cites to ten unpublished BIA decisions over a period of about eight years, a period of time when the BIA completed more than 30,000 cases each year. He argues that those citations demonstrate a ‘pattern’ of BIA orders granting sua sponte reopening following vacatur of a conviction, and that this pattern established a sufficiently ‘settled course’ that constrained the BIA’s discretion and obligated it to exercise its sua sponte authority to reopen his case. We do not agree. Among the thousands of decisions made by the BIA over many years, it is not at all remarkable or persuasive to be able to find a few that seem to have elements in common with a current litigant’s case. That is especially true with unpublished dispositions, as they generally include only brief descriptions, if any, of facts that may influence the exercise of discretion. Citation of a few unpublished decisions falls far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte, effectively eliminating the discretion that the BIA would otherwise have to examine the specifics of an individual petitioner’s case.”
“There have been other decisions over the years in which the BIA declined to exercise its sua sponte authority to reopen after determining that vacatur of the underlying conviction did not constitute an “exceptional circumstance” sufficient to warrant such an extraordinary remedy. Even if we concluded that there was a sufficiently established pattern of granting sua sponte reopening where the underlying conviction had been vacated—and we have not—Menendez-Gonzalez has not established any ‘incorrect legal premise’ in the BIA’s decision not to reopen sua sponte where the petitioner waited years before moving to reopen.”
The full text of Menendez-Gonzalez v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/15-73869.pdf
The Seventh Circuit has reaffirmed that it has jurisdiction to review legal errors committed by the Board of Immigration Appeals during the adjudication of a sua sponte motion to reopen. Fuller’s application for protection under the Convention Against Torture was denied on credibility grounds. He subsequently filed a motion to reopen with corroborating letters, in an attempt to overcome the adverse credibility determination. “The Board said in its order that Fuller was not challenging its prior conclusions regarding his credibility or his eligibility for deferral of removal; but that declaration cannot be reconciled with either the letter or the spirit of Fuller’s request for relief.”
The full text of Fuller v. Whitaker can be found here:
The First Circuit has determined that it might have jurisdiction review the denial of a sua sponte motion to reopen, if the motion raised constitutional claims. However, because the Court concluded that the petition for review should be denied on other grounds, it did not conclusively answer this jurisdictional question.
The full text of Ramirez Matias v. Sessions can be found here: http://media.ca1.uscourts.gov/pdf.opinions/16-2474P-01A.pdf
Typically, a circuit court of appeals does not have jurisdiction to review the Board of Immigration Appeals' (BIA) refusal to exercise its sua sponte authority to reopen a case. However, the Third Circuit has now recognized that at times "the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by some other method, such that the BIA’s discretion can be meaningfully reviewed for abuse. The petitioner’s showing must be persuasive enough to allow the reasonable inference that the BIA’s discretion has in fact been limited." "The key words in the above formulation are 'meaningfully' and 'reasonable.' A policy so broad as to merely redirect the BIA’s discretion, rather than limit it, will probably be insufficient. The same goes for a 'pattern' of dispositions whose contours are not clearly defined or which is not tailored to the petitioner’s circumstances." Published and unpublished BIA decisions can be reviewed when evaluating whether the BIA has created a policy, rule, or settled course of adjudication that limits its discretion. The court, however, disagreed with the petitioner's contention that the BIA has a practice or pattern of reopening cases sua sponte where the petitioner becomes eligible for relief from removal for which he was not eligible in the original removal proceedings.
The full text of Park v. Attorney General can be found here:
In two unpublished cases, the Ninth Circuit faulted the Board of Immigration Appeals (BIA) for denying two motions to reopen to seek provisional waivers where the BIA denied solely on timeliness, without addressing whether exceptional circumstances existed that warranted sua sponte reopening.
In one case, the Ninth Circuit noted that "[t]he BIA abused its discretion in denying Benitez’s motion to reopen, however, because it appears not to have considered whether Benitez was entitled to the requested relief as a matter of discretion." In the second case, the NInth Circuit noted that "[t]he BIA indicated that the law precluded reopening, which appears to be contrary to a regulation providing that the BIA always has discretion to reopen proceedings. Indeed, the Government’s position at oral argument was that the BIA had discretion and that the BIA had exercised that discretion by denying reopening. In light of the Government’s concession that reopening is a matter of discretion, the BIA’s apparent failure to recognize its discretionary authority and then to consider whether to grant or deny reopening as a matter of discretion warrants remand."
The full decision in Benitez v. Lynch can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-73614.pdf
The full decision in Osegueda de Alfaro v. Lynch can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/08/16/14-72679.pdf
Splitting from several other circuits who have addressed the issue, the Eleventh Circuit has determined that it lacks jurisdiction to review any sua sponte motion denied by the Board of Immigration Appeals (Board). Even if the Board's decision is based on an error of law, the federal court does not have jurisdiction to review.
The full text of Butka v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201511954.pdf
The Ninth Circuit has determined that it has jurisdiction to review the denial of a sua sponte motion to reopen by the agency to determine if the denial rested on legal or constitutional error. In the instant case, the Board of Immigration Appeals denied the motion to reopen based on the erroneous conclusion that the non-citizen would not be eligible for 212(c) waiver even if his proceedings were reopened. Because he would be eligible for such a waiver, the Ninth Circuit sustained the appeal, and remanded for the Board of Immigration Appeals to determine if sua sponte discretion should be exercised based on the proper legal framework.
The full decision in Bonilla v. Lynch can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/12-73853.pdf
The Supreme Court's recent decision in Mata v. Lynch makes clear that a federal court has jurisdiction to review whether a petitioner's request for equitable tolling of the 90-day deadline for filing a motion to reopen. Typically, a petitioner seeking reopening of proceedings on the basis of ineffective assistance of counsel would make an equitable tolling request based on his inability to discover his prior attorney's substandard conduct. Unfortunately for Babatunde Shoyombo, his motion to reopen requested sua sponte reopening of his proceedings based on his prior attorney's ineffective assistance, and did not make any arguments for equitable tolling. As such, the Eighth Circuit invoked its long-standing precedent that it does not not have jurisdiction to review the denial of a sua sponte motion to reopen.
The full text of Shoyombo v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/08/142649P.pdf
