Gor v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0162p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TUSHAR PRAVINKUMAR GOR,

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Petitioner,

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No. 08-3859

v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review from a Final Order

of the Board of Immigration Appeals.

No. A38 963 247.

Argued: April 22, 2009

Decided and Filed: June 4, 2010

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Before: BATCHELDER, Chief Judge; COLE, Circuit Judge; LAWSON, District Judge.

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COUNSEL

ARGUED: Philip A. Eichorn, LAW OFFICES, Cleveland, Ohio, Jonathan A. Bartell,

LAW OFFICES OF JONATHAN A. BARTELL, Cleveland, Ohio, for Petitioner. Kiley

L. Kane, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF: Philip A. Eichorn, LAW OFFICES, Cleveland, Ohio, Jonathan A. Bartell,

LAW OFFICES OF JONATHAN A. BARTELL, Cleveland, Ohio, for Petitioner. Kiley

L. Kane, John S. Hogan, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

LAWSON, D. J., delivered the opinion of the court. BATCHELDER, C. J. (pp.

21-24), delivered a separate concurring opinion. COLE, J. (pp. 25-29), delivered a

separate opinion, concurring in part and concurring in the judgment.

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The Honorable David M. Lawson, United States District Judge for the Eastern District of

Michigan, sitting by designation.

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No. 08-3859 Gor v. Holder Page 2

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OPINION

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DAVID M. LAWSON, District Judge. Petitioner Tushar Gor, a citizen of India,

seeks review of a removal order entered on the ground that Gor is an “alien . . . convicted

of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child

neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). Gor was convicted under

section 2919.21(B) of the Ohio Revised Code, which prohibits “abandon[ment], or

fail[ure] to provide support as established by a court order to, another person whom, by

court order or decree, the person is legally obligated to support.” Ohio Rev. Code Ann.

§ 2919.21(B). Although he raises four issues in his petition, the main thrust of Gor’s

argument is that his crimes amounted to non-support, not child abandonment, and

therefore he has not committed an offense that subjects him to removal. Gor did not

raise any of his four issues initially before the Immigration Judge or the Board of

Immigration Appeals, nor did he file a timely petition for review of the final order of

removal. He did raise these issues in a motion before the BIA to reopen the proceedings

sua sponte, which motion was denied, and Gor has petitioned for review of that decision

as well. The government has filed a motion to dismiss claiming that we have no

jurisdiction to review the original decision of the BIA because of Gor’s untimely

petition, and we likewise have no jurisdiction to review the denial of the motion to

reopen because that decision is committed to the BIA’s discretion. We agree that we

have no jurisdiction to review the original BIA decision. We also must conclude that we

have no jurisdiction to review the denial of the motion to reopen sua sponte, although

the Supreme Court’s recent decision in Kucana v. Holder, 130 S. Ct. 827 (2010), casts

considerable doubt on our circuit precedent that dictates that result. Therefore, we will

grant the government’s motion to dismiss, and urge the en banc court to reexamine the

validity of our prior cases in this area.

No. 08-3859 Gor v. Holder Page 3

I.

The petitioner, a twenty-nine-year-old citizen of India, was admitted to the

United States as a lawful permanent resident on February 27, 1985, when he was four

years old. Both of his parents are naturalized United States citizens who retired to live

in India in January 2005. The petitioner’s brother resides in the United States, and the

petitioner’s own ties to India are limited to three trips he made there during the 1990s

for a total period of less than three months. The petitioner earned an associate’s degree

in computer electronics, but upon graduation worked at various manual-labor jobs

outside of the computer electronics field. The petitioner’s connections to the United

States grew stronger when, at the age of seventeen, he fathered twin sons out of wedlock.

It is his failure to provide financial support for his sons that causes his current

immigration difficulties.

Gor was charged and convicted of four counts of felony non-support under Ohio

Revised Code section 2919.21(B) on September 22, 2004, and three more counts of the

same charge on May 26, 2006. In the first case, he was charged with “recklessly failing

to provide support as established by a court order” when he fell behind on his child

support obligations, and he was sentenced to three years of community control.

However, Gor apparently failed to report to his probation officer, and when the child

support arrearage continued to accumulate, he was charged with three more counts of

“abandon[ing] or fail[ing] to provide support” and was convicted on May 26, 2006. This

time, he was sentenced to a twenty-four-month custody term (eight months on each of

the counts).

Shortly after the 2006 sentencing, on June 16, 2006, the U.S. Department of

Justice issued the petitioner Form I-862, Notice to Appear, which formally placed him

in removal proceedings. Master calendar hearings were held in the petitioner’s case on

October 18, 2006, November 15, 2006, and February 20, 2007, and the petitioner

appeared for all of those hearings via a telemonitor from the Orient Confinement Facility

in Ohio. During the October 18, 2006 hearing, the immigration judge advised the

petitioner that he had a right to a lawyer at his own expense, and if he could not afford

No. 08-3859 Gor v. Holder Page 4

a lawyer, the court would give him “a list of organizations that might represent you at

low cost or no charge but they do not have to represent you.” App’x at 27. Although

the petitioner was never provided with such a list, his hearing was adjourned until

November 15, 2006 to allow him the opportunity to retain counsel. The master calendar

hearing was adjourned for the second time on November 15, 2006 when the petitioner

still had not found a lawyer. At that point, the IJ advised Gor that if he did not retain a

lawyer by the next hearing set for February 20, 2007, “we’ll have to proceed without a

lawyer.” Suppl. App’x at 68-69. On February 20, the petitioner, still incarcerated,

appeared without counsel again. The following exchange took place during the hearing:

Q. Sir, we had a prior proceeding in this case and I’ve advised you of your

rights to a lawyer. Do you have a lawyer, sir?

A. Not at this time, Sir, I contacted about 75 lawyers, each one I got a

response from said they can’t do it for under $2,000 which right now I

don’t have the capable means of, as I’m locked up.

Q. Okay, sir, well, I’m going to proceed with your case. I stated before,

U.S. Government doesn’t provide you with a lawyer and if a charitable

organization’s not going to represent you, then you’re going to have to

proceed without a lawyer. . . . Do you understand?

A. Yes, Sir.

App’x at 30-31. During the hearing, the petitioner admitted all the allegations made in

the Notice to Appear, and the IJ found him in violation of section 237(a)(2)(E) as having

been convicted of a crime of child neglect or abandonment. Since the petitioner

indicated a desire to file for asylum, the judge set the case for an individual hearing.

At the final individual hearing on April 10, 2007, Gor, again appearing pro se,

moved for cancellation of removal under section 240A of the Immigration and

Nationalization Act. The IJ denied Gor’s request.

On May 10, 2007, the petitioner appealed to the BIA, still proceeding pro se,

challenging only the merits of the cancellation-of-removal determination. On October 5,

2007, the BIA affirmed the Immigration Judge’s decision without opinion. Gor did not

file a petition for review of this decision within ninety days.

No. 08-3859 Gor v. Holder Page 5

On May 20, 2008, Gor had retained counsel, who moved the BIA to reopen

removal proceedings sua sponte under 8 C.F.R. § 1003.2(a). For the first time, the

petitioner raised the following four arguments: (1) his Ohio state convictions of non-

support are not removable offenses under 8 U.S.C. § 1227(a)(2)(E)(i); (2) the IJ erred

when he did not provide the petitioner with a list of low-cost immigration attorneys in

the area; (3) the petitioner was denied due process when the IJ proceeded with the

removal hearing despite the petitioner’s inability to retain an attorney; and (4) the IJ

erred when he failed to advise the petitioner of the availability of and consider

discretionary relief from removal available to the petitioner. The BIA denied the motion

on June 11, 2008, finding that the case was “not an exceptional situation” since “[a]ll of

the claims presented by the respondent . . . could have been presented to the Board on

appeal,” and the case law Gor cited came from “outside of the Sixth Circuit,” was

“unpublished[,] or not directly relevant.” App’x at 9.

The petitioner filed a timely petition for review of this decision, raising the four

arguments presented to the BIA in his petition to reopen. As noted earlier, the

government filed a motion to dismiss for lack of jurisdiction.

II.

Before we may consider the merits of the petitioner’s claims, we must address

the question of jurisdiction. The government had moved to dismiss the petition, arguing

that the underlying removal order is beyond our jurisdiction because the petitioner did

not file a petition to review that order within ninety days after it was issued, as required

by 8 U.S.C. § 1252(b)(1) (which now requires a review petition to be filed “not later

than 30 days after the date of the final order of removal”); the petitioner’s arguments on

appeal are not exhausted because the petitioner never properly presented them to the

BIA for consideration; and this court lacks jurisdiction to review the BIA’s decision not

to reopen the proceedings sua sponte because that decision was based on the agency’s

exercise of discretion and Congress has stripped courts of “jurisdiction to review . . . any

. . . decision or action of the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this subchapter to be in the discretion of the

No. 08-3859 Gor v. Holder Page 6

Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii).

The petitioner responds that his claims are based on the Constitution and raise questions

of law, and Congress has provided that the jurisdiction-stripping statutes are not to “be

construed as precluding review of constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(D).

A. Order of Removal

The BIA affirmed the IJ’s final order of removal on October 5, 2007. Generally,

once an alien is found to be removable in a final agency order, he can file one motion to

reconsider and one motion to reopen the removal proceedings with the agency, see 8

U.S.C. § 1229a(c)(6)-(7), or he can proceed directly to a court of appeals. 8 U.S.C.

§ 1252(b)(2). The time limits for filing a motion for reconsideration and a motion to

reopen are “crystal clear.” Randhawa v. Gonzales, 474 F.3d 918, 920 (6th Cir. 2007).

A motion to reconsider must be filed with the agency “within 30 days of the date of entry

of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(6)(B), and a motion to

reopen must be filed “within 90 days of the date of entry of a final administrative order

of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i). The petitioner did not meet either of these

deadlines. The BIA may equitably toll the ninety-day filing deadline for filing a motion

to reopen where, for example, a petitioner has received ineffective assistance of counsel.

Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (citing Ljucovic v. Gonzales, 144

F. App’x 500, 503 (6th Cir. 2005)). However, the petitioner in this case has not raised

an ineffective assistance of counsel argument (he was proceeding up to the point of the

final agency ruling without counsel) or suggested other grounds for equitable tolling.

Besides equitable tolling, the regulations set forth four other exceptions to the

timely filing of a motion to reopen with the agency: deadlines are relaxed for “motions

to reopen (1) filed by aliens who are deported in absentia; (2) filed by aliens seeking

asylum or withholding of deportation based on changed country circumstances;

(3) jointly filed by the alien and the INS; and (4) filed by the INS where the basis of the

motion is fraud in the original proceeding or a crime that would support termination of

No. 08-3859 Gor v. Holder Page 7

asylum.” Harchenko v. INS, 379 F.3d 405, 409 (6th Cir. 2004) (citing 8 C.F.R.

§§ 1003.2(c)(3)(i)-(iv)). None of those exceptions applies here.

The alien’s third option following a final removal order is appealing directly to

a court of appeals. A separate deadline of thirty days exists for appealing an order of

removal to an appropriate court of appeals. 8 U.S.C. § 1252(b)(1)-(2). This time

limitation is enforced strictly, and courts lack jurisdiction to review a BIA decision when

a petitioner fails to seek judicial review of an order within the applicable time period.

See Prekaj v. INS, 384 F.3d 265, 268 (6th Cir. 2002).

After a final order of removal is entered by the BIA, pursuing further review

within the agency does not toll the time period for seeking judicial review in the court

of appeals under 8 U.S.C. § 1252(b)(1) or divest an agency decision of its finality. Stone

v. INS, 514 U.S. 386, 405-06 (1995); see Mu Ju Li v. Mukasey, 515 F.3d 575, 578 (6th

Cir. 2008). To the contrary, “[the removal] order being final when issued, an alien has

90 days [now 30 days, see 8 U.S.C. § 1252(b)(1)] from that date to seek [judicial]

review. The alien, if he chooses, may also seek agency reconsideration of the order and

seek review of the disposition upon reconsideration within 90 days of its issuance.

Where the original petition is still before the court, the court shall consolidate the two

petitions.” Stone, 514 U.S. at 405-06. The obverse of that rule is also true: a petition for

appellate-court review does not toll the time for filing a motion for reconsideration with

the agency. Randhawa, 474 F.3d at 921. Therefore, an alien must observe separate time

limitations for proceedings within the agency and within the judicial system, even if it

results in several petitions for review ultimately pending before the court of appeals.

Once the BIA affirmed the final order of removal in this case, Gor had several

options. First, he could have moved to reopen the removal proceedings within ninety

days of October 5, 2007. Second, he could have moved for reconsideration within thirty

days of the order. Third, he could have petitioned this court directly, provided he did

that within thirty days of October 5. The petitioner took none of these steps within the

time allowed – most likely because he was still unrepresented and incarcerated. Instead,

he waited for 228 days until May 20, 2008 to file a motion for the agency to reopen its

No. 08-3859 Gor v. Holder Page 8

proceedings sua sponte. Because the petition for review of the final order of removal

was untimely, the government is correct that we have no jurisdiction to address it, and

that aspect of its motion to dismiss must be granted.

B. Exhaustion

According to 8 U.S.C. § 1252(d)(1), the circuit court has no jurisdiction to

review a petition challenging a final order of removal unless “the alien has exhausted all

administrative remedies available to the alien as of right.” See Hassan v. Gonzales, 403

F.3d 429, 432 (6th Cir. 2005) (citing Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994))

(describing exhaustion as a jurisdictional issue). Section 1252(d)(1)’s exhaustion

requirement serves to ensure that the agency has had a full opportunity to consider a

petitioner’s claims, to avoid premature interference with agency’s processes, and to

allow the BIA to compile a record for judicial review. Ramani v. Ashcroft, 378 F.3d

554, 559 (6th Cir. 2004). Therefore, each of the petitioner’s claims must have been

presented to the BIA before the petitioner may seek review in the court of appeals. Ibid.

(citing Perkovic, 33 F.3d at 619).

Notably, however, “[t]he streamlined-affirmance-without-opinion procedure is

not a dismissal, but instead a review of the merits of an appeal.” Hassan, 403 F.3d at

432 (citing Denko v. INS, 351 F.3d 717, 729 (6th Cir. 2003)). Likewise, presenting an

issue in a motion to reopen sua sponte is sufficient to exhaust that issue. See Toledo-

Hernandez v. Mukasey, 521 F.3d 332, 336 (5th Cir. 2008) (holding that “if the BIA has

never been given the opportunity to consider an issue but has the mechanisms to remedy

it, even where the 90-day period for presenting a motion to reopen has passed, a

petitioner must first present the issue to the Board in the form of a motion to reopen for

exceptional circumstances.”); Padilla v. Gonzales, 470 F.3d 1209, 1213-14 (7th Cir.

2006) (holding that a claim could be exhausted if it were denied by the agency on a

motion to reopen sua sponte); cf. Qeraxhiu v. Gonazales, 206 F. App’x 476, 482 (6th

Cir. Nov. 15, 2006) (stating that because the appellant “did not raise his claims of

ineffective assistance of counsel or request exercise of the BIA’s sua sponte authority

No. 08-3859 Gor v. Holder Page 9

to reopen under 8 C.F.R. § 1003.2(a), the issues are not exhausted and are not properly

before this court on review.”).

The petitioner in this case presented each of the four issues raised in this court

to the BIA in his tardy motion to reopen the proceedings. As discussed below, it is not

clear that the BIA considered the merits of those issues. However, the petitioner’s

presentation satisfied the requirements of 8 U.S.C. § 1252(d)(1).

C. Motion to Reopen Sua Sponte

The government argues that we have no jurisdiction to review the BIA’s denial

of the untimely motion to reopen because of 8 U.S.C. § 1252(a)(2)(B), which states:

Notwithstanding any other provision of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas corpus provision,

and sections 1361 and 1651 of such title, and except as provided in

subparagraph (D), and regardless of whether the judgment, decision, or

action is made in removal proceedings, no court shall have jurisdiction

to review–

...

(ii) any other decision or action of the Attorney General or the

Secretary of Homeland Security the authority for which is specified

under this subchapter to be in the discretion of the Attorney General or

the Secretary of Homeland Security . . . .

8 U.S.C. § 1252(a)(2)(B)(ii). The government correctly notes that BIA has discretion

to reopen its proceedings on its own “at any time.” 8 C.F.R. § 1003.2(a) (“The Board

may at any time reopen or reconsider on its own motion any case in which it has

rendered a decision.”). Since the agency’s regulations characterize the decision as

discretionary, the government reasons, section 1252(a)(2)(B) bars review. The

government also points out that our precedent indicates that decisions committed to

agency discretion by regulation are beyond judicial review. See Barry, 524 F.3d at 724;

Harchenko, 379 F.3d at 410-11.

In Kucana v. Holder, 130 S. Ct. 827 (2010), the Supreme Court rejected the idea

that an agency can curtail the jurisdiction of an Article III court and held that “[a]ction

on motions to reopen, made discretionary by the Attorney General only, . . . remain

No. 08-3859 Gor v. Holder Page 10

subject to judicial review,” id. at 840. In Kucana, the Court construed the jurisdiction-

stripping provision in the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (IIRIRA), 110 Stat. 3009-546, relied upon by the government here. That

provision is found in 8 U.S.C. § 1252(a)(2)(B)(ii), quoted above. The Seventh Circuit

found this statute to bar review of a decision by the BIA denying the petitioner’s late

motion to reopen removal proceedings because the Attorney General had made such

decisions discretionary by regulation. The Court noted that Congress had not codified

the provision in the regulation making such decisions discretionary. The Court read the

phrase “specified under this subchapter” in section 1252(a)(2)(B)(ii) to mean that

“Congress barred court review of discretionary decisions only when Congress itself set

out the Attorney General’s discretionary authority in the statute.” Kucana, 130 S. Ct.

at 836-37.

The Court concluded that Congress intended judicial review of motions to reopen

to be as broad as it was before the IIRIRA was enacted: “The BIA has broad discretion,

conferred by the Attorney General, ‘to grant or deny a motion to reopen,’ 8 CFR

§ 1003.2(a), but courts retain jurisdiction to review, with due respect, the Board’s

decision.” Kucana, 130 S. Ct. at 838. The Court found the idea of an agency regulation

placing a matter beyond court jurisdiction to contravene the “presumption . . . ‘that

executive determinations are generally subject to judicial review,’” id. at 839 (quoting

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)), “the longstanding

exercise of judicial review of administrative rulings on reopening motions,” id. at 831,

and the “congressional design” that “[Congress], and only [Congress], would limit the

federal courts’ jurisdiction,” id. at 839-40.

The Court’s holding in Kucana was clear: “While Congress pared back judicial

review in IIRIRA, it did not delegate to the Executive authority to do so.” Id. at 840.

Were it otherwise, “the Executive would have a free hand to shelter its own decisions

from abuse-of-discretion appellate court review simply by issuing a regulation declaring

those decisions ‘discretionary.’” Ibid.

No. 08-3859 Gor v. Holder Page 11

We therefore reject the government’s argument that review of the denial of the

petitioner’s motion to reopen is barred by the confluence of 8 U.S.C. § 1252(a)(2)(B)(ii)

and 8 C.F.R. § 1003.2(4).

The government also cites our precedents – Harchenko v. INS and Barry v.

Mukasey – as an additional ground for finding a lack of jurisdiction to review the denial

of the motion to reopen. In Harchenko, a panel of this court was asked to overturn the

BIA’s refusal to reopen a matter sua sponte. The court observed that the decision

whether to reopen was within the BIA’s discretion, and looking to the Supreme Court’s

decision in Heckler v. Chaney, 471 U.S. 821 (1985), held that the court had no

jurisdition to review the administrative decision. The panel stated: “The decision

whether to invoke sua sponte authority is committed to the unfettered discretion of the

BIA. . . . ‘Therefore, the very nature of the claim renders it not subject to judicial

review.’” Harchenko, 379 F.3d at 410-11 (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.

1999) (reasoning that where there is no meaningful standard against which to judge the

agency’s exercise of discretion, Heckler v. Chaney, 471 U.S. at 830, bars judicial

review)). Following Harchenko, the court in Barry held that the court of appeals has no

jurisdiction to review the denial of a motion to reopen sua sponte. See Barry, 524 F.3d

at 724 (stating that where the BIA declines to exercise its sua sponte authority to reopen

removal proceedings, “irrespective of whether that decision was proper . . . the BIA’s

determination to forgo the exercise of its sua sponte authority is a decision that [courts]

are without jurisdiction to review”).

Those decisions remain the law of this circuit. “A published prior panel decision

‘remains controlling authority unless an inconsistent decision of the United States

Supreme Court requires modification of the decision or this Court sitting en banc

overrules the prior decision.’” Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir.

2009) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)); see also United States v. Barnaell, 477 F.3d 844, 850 n.4 (6th Cir. 2007) (citing

Meeks v. Illinois Cent. Gulf R.R., 738 F.2d 748, 751 (6th Cir. 1984)). The same

injunction appears in Sixth Circuit Rule 206(c), which reads: “Reported panel opinions

No. 08-3859 Gor v. Holder Page 12

are binding on subsequent panels.” Kucana cannot fairly be read as overruling those

cases, since the Supreme Court specifically expressed “no opinion on whether federal

courts may review [BIA refusals] to reopen removal proceedings sua sponte.” 130 S. Ct.

at 839 n.18. Therefore, we are constrained to hold that we lack jurisdiction to review the

BIA’s denial of the petitioner’s motion to reopen sua sponte.

However, we believe the Supreme Court’s reasoning set out in Kucana

undermines the continuing validity of Harchenko and Barry, since both cases are based

on the same premise rejected in Kucana. Barry adopts the holding from Harchenko

without analysis or discussion. Harchenko, in turn, after citing cases from other circuits,

relies heavily on the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821

(1985). Heckler held that when Congress commits to an agency discretionary authority

to perform an act without prescribing meaningful governing standards, that exercise of

discretion is placed beyond judicial review by section 701(a)(2) of the Administrative

Procedures Act (APA). Id. at 830; see 5 U.S.C. § 701(a)(2) (authorizing judicial review

of final agency action “except to the extent that . . . agency action is committed to

agency discretion by law”). It does not support a conclusion that an agency can strip a

court of jurisdiction to review its own actions by enacting regulations that deem these

actions discretionary. Barry and Harchenko may have misread Heckler by applying it

to agency decisions made discretionary by regulation, that is, by the agency itself,

effectively permitting the agency to insulate its own decisions from judicial review – a

proposition soundly rejected by the Court in Kucana.

Heckler itself rejected a claim by several death row inmates who sought a

mandatory injunction to compel the Food and Drug Administration to enforce provisions

of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., (FDCA) against

officials in states that had adopted the lethal injection method for carrying out a death

sentence. The inmates argued that the FDCA prohibited off-label use of drugs, and that

the drugs chosen by the states could not be used for that purpose until the FDA approved

the drugs as “safe and effective” for human execution. Id. at 827. The Court held that

the FDA’s decision not to institute enforcement action was shielded from judicial review

No. 08-3859 Gor v. Holder Page 13

by section 701(a)(2) of the APA. In construing that section, the Court cited Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), abrogated on other grounds

by Califano v. Sanders, 430 U.S. 99 (1977), which characterized that statutory bar to

judicial review as “a very narrow exception.” Overton Park, 401 U.S. at 410. The

Overton Park Court explained, “The legislative history of the Administrative Procedure

Act indicates that [this exception] is applicable in those rare instances where ‘statutes

are drawn in such broad terms that in a given case there is no law to apply.’” Ibid.

(citing S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). The Heckler court stated that

under section 702(a)(2), “review is not to be had if the statute is drawn so that a court

would have no meaningful standard against which to judge the agency’s exercise of

discretion. In such a case, the statute (‘law’) can be taken to have ‘committed’ the

decisionmaking to the agency’s judgment absolutely.” Heckler, 470 U.S. at 830

(emphasis added). The Court concluded that “[t]he general exception to reviewability

provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow

one” and left “to Congress, and not to the courts, the decision as to whether an agency’s

refusal to institute proceedings should be judicially reviewable.” Id. at 838 (emphasis

added).

In Heckler, the Court determined that Congress can restrict the jurisdiction of

federal courts over certain agency actions under the APA by deeming them

“discretionary” and drafting “statutes” that provide a court “no meaningful standard

against which to judge the agency’s exercise of discretion.” Id. at 830. It does not

support a conclusion that an agency can strip a court of jurisdiction to review its own

actions by enacting regulations that deem these actions discretionary. Recognizing such

authority would fundamentally alter the constitutional checks and balances put in place

by the separation of powers doctrine. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004)

(holding that under the separation of powers doctrine, only Congress can expand or

contract the subject-matter jurisdiction of a lower Article III court); Keene Corp. v.

United States, 508 U.S. 200, 207 (1993) (“Congress has the constitutional authority to

define the jurisdiction of the lower federal courts.”); INS v. Chadha, 462 U.S. 919, 957-

No. 08-3859 Gor v. Holder Page 14

58 (1983) (holding that Congress may alter federal court jurisdiction through legislation,

but to do so it must satisfy the requirements of bicameralism and presentment).

Kucana reinforces Heckler’s prescription that the narrow exception to judicial

review of agency decisions must originate from Congress, not the agency itself. The

majority of cases finding no jurisdiction to review denials of motions to reopen sua

sponte on account of Heckler, including Barry and Harchenko, do so on the basis of

standardless regulations. See, e.g., Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999); Ali v.

Gonzales, 448 F.3d 515, 518 (2d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472,

474-75 (3d Cir. 2003); Doh v. Gonzales, 193 F. App’x 245, 246 (4th Cir. 2006) (per

curiam); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004);

Harchenko, 379 F.3d at 410-11; Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003);

Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Belay-Gebru v. INS, 327 F.3d 998,

1000-01 (10th Cir. 2003); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999). The only

two cases that cite a statute in concluding that such decisions are unreviewable point to

8 U.S.C. § 1103(g)(2), which generally authorizes “[t]he Attorney General [to] establish

such regulations . . . as the Attorney General determines to be necessary for carrying out

this section.” See Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (en banc)

(per curiam) (“The regulation establishing the BIA’s authority to reopen sua sponte was

promulgated pursuant to a general grant of regulatory authority that sets no standards for

this decision. See 8 U.S.C. § 1103(g).”); Lenis v. U.S. Attorney Gen., 525 F.3d 1291,

1293 (11th Cir. 2008) (“[N]o statute expressly authorizes the BIA to reopen cases sua

sponte; rather, the regulation at issue derives from a statute that grants general authority

over immigration and nationalization matters to the Attorney General, and sets no

standard for the Attorney General’s decision-making in this context. See 8 U.S.C.

§ 1103(g)(2).”). Under that rationale, however, any agency decision made under a

regulation in which the agency grants itself discretion to act would be beyond judicial

review where Congress granted general authority to the agency to make rules, which is

to say, in virtually every case. That result directly contradicts Kucana’s central holding.

No. 08-3859 Gor v. Holder Page 15

Moreover, the regulation at issue in Kucana, 8 C.F.R. § 1003.2, is the same one

that the courts of appeals have held defines the BIA’s discretion over sua sponte

reopening so broadly as to preclude review. In deeming such decisions unreviewable,

the courts have pointed to the breadth of the first paragraph of the regulation:

(a) General. The Board may at any time reopen or reconsider on its own

motion any case in which it has rendered a decision. . . . The decision to

grant or deny a motion to reopen or reconsider is within the discretion of

the Board, subject to the restrictions of this section. The Board has

discretion to deny a motion to reopen even if the party moving has made

out a prima facie case for relief.

8 C.F.R. § 1003.2(a); see, e.g., Harchenko, 379 F.3d at 411 (“No language in the

provision requires the BIA to reopen a deportation proceeding under any set of particular

circumstances. Instead, the provision merely provides the BIA the discretion to reopen

immigration proceedings as it sees fit.”) (internal quotation marks and citation omitted)).

Yet the BIA’s authority to deny motions to reopen, as set out in the second sentence of

the regulation, is no less broad. The second sentence states that the BIA’s discretion

regarding motions to reopen is “subject to the restrictions of this section,” but the rest

of the regulation imposes no limits on the BIA’s authority to refuse such motions.

Rather, it reads in relevant part:

(c) Motion to reopen.

(1) A motion to reopen proceedings shall state the new facts that will be

proven at a hearing to be held if the motion is granted and shall be

supported by affidavits or other evidentiary material. A motion to reopen

proceedings for the purpose of submitting an application for relief must

be accompanied by the appropriate application for relief and all

supporting documentation. A motion to reopen proceedings shall not be

granted unless it appears to the Board that evidence sought to be offered

is material and was not available and could not have been discovered or

presented at the former hearing; nor shall any motion to reopen for the

purpose of affording the alien an opportunity to apply for any form of

discretionary relief be granted if it appears that the alien’s right to apply

for such relief was fully explained to him or her and an opportunity to

apply therefore was afforded at the former hearing, unless the relief is

sought on the basis of circumstances that have arisen subject to the

hearing.

No. 08-3859 Gor v. Holder Page 16

8 C.F.R. § 1003.2(c) (emphasis added). As the Supreme Court has noted regarding

materially identical language in 8 C.F.R. § 3.2, the predecessor to § 1003.2, the

regulation “is couched solely in negative terms; it requires that under certain

circumstances a motion to reopen be denied, but does not specify the conditions under

which it shall be granted.” INS v. Doherty, 502 U.S. 314, 323 (1992). By consequence,

the Court concluded, “[t]he granting of a motion to reopen is thus discretionary.” Id. at

323. In other words, § 1003.2 no more fetters the BIA’s discretion to deny motions to

reopen than it does the BIA’s discretion to reopen proceedings sua sponte. Nor does the

statute pursuant to which this regulation is promulgated, 8 U.S.C. § 1103(g)(2) (“The

Attorney General shall establish such regulations . . . as the Attorney General determines

to be necessary for carrying out this section.”), provide any evident limit to the agency’s

authority. If courts nonetheless retain jurisdiction to review the BIA’s discretionary

decision not to grant a motion to reopen, it is difficult to understand how the BIA’s

equally broad discretion not to reopen proceedings sua sponte entirely bars judicial

review.

Because Barry and Harchenko stand on the same tenuous foundation that an

agency acting on its own can insulate its decisions from judicial review – a foundation

to which Heckler lends no support and which has been undermined conclusively by

Kucana – we believe those precedents ought to be reexamined by the en banc court.

Gor’s case provides a clear example of why review of BIA decisions is

necessary. The IJ who conducted Gor’s hearing violated BIA regulations by neglecting

to provide Gor with a list of free legal service-providers or confirm that Gor had

received this list. See 8 C.F.R. § 1240.10(a). “It is an elemental principle of

administrative law that agencies are bound to follow their own regulations.” Wilson v.

Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004). Moreover, “[w]here a

prescribed procedure is intended to protect the interests of a party before the agency,

‘even though generous beyond the requirements that bind such agency, that procedure

must be scrupulously observed.’” Id. (quoting Vitarelli v. Seaton, 359 U.S. 535, 547

(1959) (Frankfurter, J., concurring)). Here, the IJ’s failure to abide by the agency’s own

No. 08-3859 Gor v. Holder Page 17

regulations, insofar as it impeded Gor’s ability to retain counsel, likely violated Gor’s

right to due process. Cf. Picca v. Mukasey, 512 F.3d 75, 78-80 (2d Cir. 2008) (vacating

removal order where IJ failed to comply with 8 C.F.R. § 1240.10(a)(3) because

petitioner’s access to counsel in immigration proceedings implicates the “‘fundamental

notions of fair play underlying the concept of due process’”) (quoting Montilla v. INS,

926 F.2d 162, 167 (2d Cir. 1991)); Snajder v. INS, 29 F.3d 1203, 1206-07 (7th Cir.

1994) (vacating removal order where IJ violated petitioner’s right to counsel by failing

to obey BIA regulation requiring re-apprisal of the petitioner’s rights following lodging

of an additional charge). Had Gor been represented during his hearing, counsel might

well have presented the colorable legal arguments, now raised before us, that Gor’s

convictions for failure to pay child support do not render him subject to deportation

under the INA. In other words, but for the IJ’s apparent due process violation, there is

a strong possibility that Gor could have demonstrated his deportation is contrary to law.

In this case, the petitioner’s motion to reopen also was based in part on the claim

that the IJ failed to develop the record sufficiently to establish that the petitioner’s

convictions made him removable under 8 U.S.C. § 1227(a)(2)(E)(i). That claim

deserves some consideration. Normally, courts use a categorical approach when

interpreting a state criminal statute, focusing on the “‘intrinsic nature of the offense

rather than on the factual circumstances surrounding any particular violation’.” Patel

v. Ashcroft, 401 F.3d 400, 409 (6th Cir. 2005) (quoting Chery v. Ashcroft, 347 F.3d 404,

407 (2d Cir. 2003)). Under that approach, courts look at the “‘elements and the nature

of the offense of conviction, rather than to the particular facts relating to the petitioner’s

crime.’” Ibid. (quoting Leocal v. Ashcroft, 543 U.S.1, 6-7 (2004)); see also Taylor v.

United States, 495 U.S. 575 (1990). Where the statute punishes diverse categories of

criminal acts, some of which would subject an alien to removal and some of which

would not, courts and the agency apply the so-called “modified categorical approach”

to analyzing an alien’s conduct. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1020

(9th Cir. 2005); Mehboob v. Attorney Gen., 549 F.3d 272, 275 (3d Cir. 2008); James v.

Mukasey, 522 F.3d 250, 254-55 (2d Cir. 2008); Jaadan v. Gonzales, 211 F. App’x 422,

427 (6th Cir. 2006). If the statute is considered divisible, the agency can refer to the

No. 08-3859 Gor v. Holder Page 18

record underlying the conviction – the charging document, a plea agreement, a verdict

or judgment of conviction, a record of the sentence, or a plea colloquy, but not the

underlying facts – to ascertain whether the alien’s conviction falls within the part of the

statute that permits removal. James, 522 F.3d at 254 (citing Dickson v. Ashcroft, 346

F.3d 44, 48-49 (2d Cir. 2003); Jaadan, 211 F. App’x at 427. “‘[T]he disjunctive

phrasing of the statute of conviction will . . . invite inquiry into the specifics of the

conviction.’” Mendieta-Robles v. Gonzales, 226 F. App’x 564, 567 (6th Cir. 2007)

(quoting Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004)).

Although the statute under which the petitioner was found to be removable sets

forth a clear definition for the term “domestic violence,” Congress has not defined the

terms “child abuse,” “child neglect” or “child abandonment” in the Immigration and

Nationality Act. And although the BIA often considers child support arrearage as a

negative factor in the exercise of its discretion, see, e.g., In re Vicheth Sek a.k.a. Vicheth

Ricky Sek, 2004 WL 1739102 (BIA June 8, 2004), it has never held that a failure to pay

child support qualifies as a removable offense on its own. Nor has any court of appeals

held so. Recognizing that section 237(a)(2)(E)(i) was enacted in the Illegal Immigration

Reform and Immigration Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 2009

(1996) (“IIRIRA”), “as part of an aggressive legislative movement to expand the

criminal grounds of deportability in general and to create a ‘comprehensive statutory

scheme to cover crimes against children’ in particular,” the BIA has defined “child

abuse” broadly as “any offense involving an intentional, knowing, reckless, or criminally

negligent act or omission that constitutes maltreatment of a person under 18 years old

or that impairs such a person’s physical or mental well-being, including sexual abuse or

exploitation.” In re Velazquez-Herrera, 24 I. & N. Dec. 503, 508-09, 517 (BIA 2008).

The House conference report on the IIRIRA notes that the grounds for deportability were

amended

to provide that an alien convicted of crimes of domestic violence,

stalking, or child abuse is deportable. The crimes of rape and sexual

abuse of a minor are elsewhere classified as aggravated felonies . . . , thus

making aliens convicted of those crimes deportable and ineligible for

most forms of immigration benefits or relief from deportation.

No. 08-3859 Gor v. Holder Page 19

H.R. Conf. Rep. No. 104-828, 104th Cong., 2d Sess. at 505-06 (Sept. 24, 1996); see In

re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 994-95 (BIA 1999). “Congress’[s] intent,

then, was to expand the definition of an aggravated felony and to provide a

comprehensive statutory scheme to cover crimes against children.” In re Rodriguez-

Rodriguez, 22 I. & N. Dec. at 994. It is doubtful, however, that the definition is broad

enough to include the crime of failing to pay child support, which would expand

significantly the grounds for removal.

The BIA denied the motion to reopen, determining that the question whether the

petitioner actually committed a removable offense was not worthy of consideration

because it did not view the issue as “an exceptional situation.” App’x at 9. That

conclusion is difficult to accept. The motion to reopen raised a basic question whether

the petitioner had committed an offense that provides a legal basis for removal; removal

of a lawful permanent resident absent a statutory basis plainly would amount to an

exceptional circumstance.

III.

Gor’s case is a textbook example of the propriety – and the necessity – of judicial

review of agency decisions. See Bowen v. Massachusetts, 487 U.S. 879, 908 n.46 (1988)

(“Much recent academic writing emphasizes the importance of . . . Court review of

agency action. The theoretical justification for judicial review of agency action is

grounded in concerns about constraining the exercise of discretionary power by

administrative agencies. That power is legitimized by the technical expertise of

agencies. But judicial review promotes fidelity to statutory requirements, and, when

congressional intent is ambiguous, it increases the likelihood that the regulatory process

will be a responsible exercise of discretion.”) (quoting Delaware Div. of Health & Soc.

Servs. v. Dept. of Health & Human Servs., 665 F. Supp. 1104, 1117-18 (D. Del. 1987))).

Although circuit precedent bars that review, there is good reason here to reexamine our

cases on the subject.

No. 08-3859 Gor v. Holder Page 20

However, for the reasons stated, we GRANT the government’s motion to dismiss

the petition for review for want of jurisdiction.

No. 08-3859 Gor v. Holder Page 21

_________________

CONCURRENCE

_________________

ALICE M. BATCHELDER, Chief Judge, concurring. I concur with the lead

opinion’s conclusion that we do not have jurisdiction to review either the original

decision of the Board of Immigration Appeals or their decision not to reopen

proceedings sua sponte, and that Petitioner’s appeal must be dismissed. I write

separately to contest the notion set forth in the lead opinion that “the Supreme Court’s

recent decision in Kucana v. Holder, 130 S.Ct. 827 (2010), casts considerable doubt on

our circuit precedent that dictates” that we have no jurisdiction to review the BIA’s

denial of Tushar Gor’s motion to reopen sua sponte.

The attempts of the lead opinion to make this case look like Kucana are creative

but, ultimately, unconvincing. This case is fundamentally different from Kucana for two

vitally important and, in my opinion, obvious reasons.

First, unlike the relevant arguments in Kucana – and unlike the lead opinion’s

characterization of the government’s arguments here – the government here does not

base its jurisdictional arguments on the text of 8 U.S.C. § 1252(a)(2)(B)(ii), which the

lead opinion concedes was the basis for the Kucana decision. Lead Op. at 10. Instead,

the government argues only that “[t]his Court lacks jurisdiction to review the Board’s

refusal to sua sponte reopen because such determinations are committed to the Board’s

unfettered discretion.” While the government made a nod to the jurisdiction-stripping

provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Lead Op. at 11, the government’s analysis relies entirely on our relevant case law, Barry

v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008) (“the decision whether to invoke sua

sponte authority under 8 C.F.R. § 1003.2(a) is committed to the unfettered discretion of

the BIA and is therefore not subject to judicial review.”) (internal quotation marks and

brackets omitted), and Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004) (“The

decision whether to invoke sua sponte authority is committed to the unfettered discretion

of the BIA. Therefore, the very nature of the claim renders it not subject to judicial

No. 08-3859 Gor v. Holder Page 22

review.”) (internal citation and quotation marks omitted). In fact, nowhere in the

government’s brief is § 1252 even mentioned.

Briefing in this case was completed prior to the Supreme Court’s decision in

Kucana, and we had previously held that § 1252(a)(2)(B)(ii) proscribed judicial review

of BIA denials of motions to reopen. Ghazali v. Holder, 585 F.3d 289, 291 (6th Cir.

2009) (“The Immigration and Nationality Act strips federal courts of jurisdiction to

review decisions specified under 8 U.S.C. §§ 1151-1381 to be in the discretion of the

Attorney General.”) (internal quotation marks and brackets omitted). The government

could have attempted to argue that § 1252 and Ghazali precluded review, but did not.

It is therefore troubling that the lead opinion chooses to mischaracterize the

government’s arguments. Doing so allows the lead opinion to create the illusion that this

case is analogous to Kucana.

The second reason why this case differs from Kucana is the fact that there is a

world of difference between the immigrant’s statutory right to file a motion to reopen,

which was at issue in Kucana, and the discretionary right of the BIA – a right neither

granted by nor addressed by Congress – to reopen sua sponte. The Kucana Court

recognized this difference when it expressly declined to express any opinion “on whether

federal courts may review the Board’s decision not to reopen removal proceedings sua

sponte.” Kucana, 130 S.Ct. at 839 n.18. The lead opinion goes to great lengths to show

why the Supreme Court’s express refusal to opine on the issue decided by our prior

holdings in Barry and Harchenko should be viewed as an indication that the time has

come to abandon those holdings. In doing so, the lead opinion ignores the huge gulf that

separates a statutory right to move to reopen and a purely discretionary non-statutory

power to reopen sua sponte.

The Kucana Court held that the text of § 1252 barred judicial review “only when

Congress itself set out the Attorney General’s discretionary authority in the statute.” Id.

at 837 n.13. Any attempts to proscribe judicial review by regulation only, including

8 C.F.R. § 1003.2(a), were invalid. “Had Congress elected to insulate denials of motions

to reopen from judicial review, it could have so specified.” Kucana, 130 S.Ct. at 838.

No. 08-3859 Gor v. Holder Page 23

The lead opinion here clearly interprets this language to mean that all BIA decisions

must be subject to judicial review, except where Congress has expressly removed

jurisdiction. When the power to reopen sua sponte is viewed in context, however, this

conclusion is completely unsupportable.

The Kucana Court was faced with: (1) an express statutory right to file a motion

to reopen proceedings; and (2) agency action that attempted to declare BIA responses

to an immigrant’s exercise of that right off-limits to judicial review. The Court

described the motion to reopen as “an ‘important safeguard’ intended ‘to ensure a proper

and lawful disposition’ of immigration proceedings.” Id. at 834 (quoting Dada v.

Mukasey, 128 S.Ct. 2307, 2317-19 (2008)). This safeguard had been put in place by

Congress, id. at 838, and only an express removal of jurisdiction would suffice. Any

ambiguity was to be resolved in favor of judicial review because the cannons of statutory

construction establish a presumption of judicial review of administrative action. Id. at

839. None of the Kucana Court’s analysis applies, however, to the case before us.

The power of the BIA to reopen sua sponte arises only from its own regulations.

Congress has taken no steps to establish an individual right applicable to Gor, and

without Congressional action to establish a right, the firm requirement that only

Congress may remove jurisdiction simply does not exist. No one has argued that the

BIA was required to give itself the power to reopen proceedings sua sponte in the event

it should decide that extraordinary circumstances warrant it, but the lead opinion

concludes that once an agency determines that it will, on occasion, bend the rules in

helpful ways, every person who might benefit from a bending of the rules has the right

to challenge the agency’s decision not to do so.1

Harchenko and Barry remain good law because they were premised on the well-

established principle that “review is not to be had if the statute is drawn so that a court

would have no meaningful standard against which to judge the agency’s exercise of

1

From a policy perspective, the lead opinion seems perfectly designed to assure that agencies will

never again be willing to bend the rules in order to help those they are empowered to help.

No. 08-3859 Gor v. Holder Page 24

discretion.” Harchenko, 379 F.3d at 411 (quoting Heckler v. Chaney, 470 U.S. 821, 830

(1985)). As we stated in Harchenko:

As other courts have noted, the discretion permitted by [8 C.F.R.

§ 1003.2(a)] is ‘so wide that even if the party moving has made out a

prima facie case for relief, the BIA can deny a motion to reopen a

deportation order. No language in the provision requires the BIA to

reopen a deportation proceeding under any set of particular

circumstances. Instead, the provision merely provides the BIA the

discretion to reopen immigration proceedings as it sees fit.

Id. (citation omitted). The Harchenko and Barry panels concluded, as has nearly every

other Circuit to consider the question, that the BIA’s exercise of its sua sponte authority

was not reviewable because there was simply “no law to apply.” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). As expressed in greater detail

by the Eighth Circuit:

The statute governing motions to reopen speaks only to motions filed by

a party; it does not establish any standard to guide the agency’s

discretion whether to reopen on its own motion. The regulation

establishing the BIA’s authority to reopen sua sponte was promulgated

pursuant to a general grant of regulatory authority that sets no standards

for this decision. The regulation itself, 8 C.F.R. § 1003.2(a), provides no

guidance as to the BIA’s appropriate course of action, sets forth no

factors for the BIA to consider in deciding whether to reopen sua sponte,

places no constraints on the BIA’s discretion, and specifies no standards

for a court to use to cabin the BIA’s discretion.

Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (internal citations omitted).

Without a meaningful standard to apply, review of the BIA’s exercise of its discretion

would become nothing more than a vehicle for obtaining judge-preferred results.

Because I believe this case differs fundamentally from Kucana, I believe that our

prior holdings in Barry and Harchenko remain good law, and I cannot join the lead

opinion in urging their abandonment.

No. 08-3859 Gor v. Holder Page 25

_______________________________________________________________

CONCURRING IN PART AND CONCURRING IN THE JUDGMENT

_______________________________________________________________

COLE, Circuit Judge, concurring in part and concurring in the judgment. I agree

that we lack jurisdiction to review the original decision of the Board of Immigration

Appeals (“BIA”) and that this court’s precedent blocks review of the BIA’s decision not

to reopen sua sponte Gor’s immigration proceedings. I write separately to explain why

I believe Kucana v. Holder, 130 S. Ct. 827 (2010), indicates that this precedent is in

error.

The Government conflates two potential jurisdictional obstacles to appellate

review: the jurisdictional bar enacted by § 1252(a)(2)(B)(ii) and the purported absence

of meaningful standards against which to evaluate BIA decisions not to reopen

proceedings sua sponte. In its brief, the Government argues that the statutory bar

encompasses BIA decisions not to reopen immigration proceedings sua sponte, citing

in support our decisions in Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008), and

Harchenko v. I.N.S., 379 F.3d 405 (6th Cir. 2004). These decisions do not rely on

§ 1252(a)(2)(B)(ii), but rather hold that we lack jurisdiction because the regulation

authorizing sua sponte reopening, 8 C.F.R. § 1003.2, “provides no standard against

which to judge the agency’s exercise of discretion.” See Harchenko, 379 F.3d at 410-11.

This holding, which rests on principles of administrative law, is distinct from the

jurisdictional bar in § 1252(a)(2)(B)(ii).1

1

Chief Judge Batchelder’s concurring opinion dismisses the view that the Government relies on

both § 1252(a)(2)(B)(ii) and our precedent as a troubling and deliberate mischaracterization of the

Government’s argument. The opinion argues that the Government does not rely on § 1252(a)(2)(B)(ii) nor

mention Ghazali v. Holder, 585 F.3d 289 (6th Cir. 2009), which it interprets as holding that

§ 1252(a)(2)(B)(ii) proscribes judicial review of BIA denials of timely motions to reopen. In fact, the first

sentence of the Government’s substantive analysis explicitly addresses § 1252(a)(2)(B)(ii), (see Resp’t Br.

12), and the remainder of the Government’s argument follows from this starting point. Moreover, it comes

as no surprise that the Government does not mention Ghazali, as the decision does not concern a motion

to reopen, but a motion to reconsider, and does not hold that we lack jurisdiction over either. See 585 F.3d

at 291. Thus, while little rests on the point—both the lead opinion and this opinion acknowledge that

Kucana explicitly addresses only § 1252(a)(2)(B)(ii)—to say that the Government relies on both

§ 1252(a)(2)(B)(ii) and our precedent seems an entirely accurate characterization.

No. 08-3859 Gor v. Holder Page 26

While the Supreme Court in Kucana expressly addressed only whether

§ 1252(a)(2)(B)(ii) bars appellate review of BIA decisions to deny timely motions to

reopen and disclaimed expressing any opinion on whether the courts may review BIA

decisions not to reopen removal proceedings sua sponte, see Kucana, 130 S. Ct. at 839

n.18, the Court’s rationale nonetheless suggests that neither § 1252(a)(2)(B)(ii) nor any

dearth of meaningful standards of review precludes our consideration of such decisions.

Kucana held that § 1252(a)(2)(B) bars review only of decisions made discretionary by

the Immigration and Nationality Act (“INA”) itself, and not of decisions made

discretionary by regulations promulgated pursuant to the INA.2 As we and our sister

courts have recognized, the BIA’s authority to reopen proceedings sua sponte is made

discretionary by regulation. See Harchenko, 379 F.3d at 410-11; see also Mosere v.

Mukasey, 552 F.3d 397, 400-01 (4th Cir. 2009) (collecting cases from other circuits).

Thus, under Kucana, § 1252(a)(2)(B)(ii) does not bar judicial review of such decisions.

See 130 S. Ct. at 831. Finding otherwise would ignore the strong presumption in favor

of judicial review and raise significant separation of powers concerns. Cf. id. at 839-40.3

Moreover, the outcome of Kucana casts implicit but considerable doubt on the

continued validity of Barry and Harchenko. As the lead opinion recognizes, the

regulation at issue in Kucana, 8 C.F.R. § 1003.2, is the same one that we and other

circuits have held defines the BIA’s discretion over sua sponte reopening so broadly as

to preclude review. Yet Kucana held—the BIA’s equally unfettered discretion to deny

motions to reopen notwithstanding—that the appellate courts retain jurisdiction to

2

The Court noted that “any lingering doubt” regarding this reading of § 1252(a)(2)(B)(ii) was

dispelled by “the presumption favoring judicial review of administrative action” absent “clear and

convincing evidence” to the contrary. Kucana, 130 S. Ct. at 839 (internal quotation marks omitted). While

Kucana does not hold that Congress may never delegate legislative authority to curtail judicial review to

an executive agency, any such delegation would raise significant separation of powers concerns. Compare

United States v. Dryden, 563 F.3d 1168, 1170-71 (10th Cir. 2009) and Owens v. Republic of Sudan, 531

F.3d 884, 888-93 (D.C. Cir. 2008) with Miller v. F.C.C., 66 F.3d 1140, 1144 (11th Cir. 1995) and United

States v. Mitchell, 18 F.3d 1355, 1360 n.7 (7th Cir. 1994).

3

While two Courts of Appeals have noted that 8 C.F.R. § 1003.2(a) is promulgated pursuant to

8 U.S.C. § 1103, see Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293 (11th Cir. 2008); Tamenut v.

Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008), Kucana indicates that this general grant of regulatory

authority does not block judicial review. The BIA’s authority over timely motions to reopen, which courts

retain jurisdiction to review under Kucana, derives from the same statute. In fact, § 1103 is in a different

subchapter of the INA to that specified by § 1252(a)(2)(B)(ii). See Kucana, 130 S. Ct. at 840-41 (Alito,

J., concurring).

No. 08-3859 Gor v. Holder Page 27

review such decisions, without any suggestion that their review might be impeded by a

dearth of meaningful standards to apply.4 Indeed, we and our sister courts routinely

review BIA decisions denying motions to reopen without encountering any obstacle

created by a lack of meaningful standards of review. We have held that the BIA abuses

its discretion to deny motions to reopen when it acts arbitrarily, irrationally or contrary

to law. Lindor v. Holder, 317 F. App’x 492, 497 (6th Cir. 2009) (citing Sswajje v.

Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003)). To ensure that the BIA has exercised its

discretion appropriately, we require that it give more than cursory, summary, or

conclusory statements in support of its decision. Id. at 498 (citing Daneshvar v.

Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004)). The BIA must provide a rational basis for

its decision, including an explanation of any departure from established policies, and the

decision may not rest on an impermissible basis, such as invidious discrimination against

a particular race or group. Id. (citing Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.

2005)). Similar standards might be readily and meaningfully applied in reviewing

refusals to reopen proceedings sua sponte. Cf. Tamenut, 521 F.2d at 1006-07 (Beam, J.,

dissenting) (making similar argument).

This is not to say that the standard and scope of review we apply should be the

same as when reviewing the BIA’s denial of a timely motion to reopen. Under 8 U.S.C.

§ 1229a(c)(7)(C)(i), petitioners generally have ninety days from the entry of a removal

order to move for reopening; after this deadline has expired, the only avenue of relief is

for the BIA to reopen proceedings sua sponte. Applying the same level of scrutiny when

the ninety days has elapsed as when a timely motion has been filed would tend to

undercut the statutory deadline. Our review must reflect that the BIA has broad

discretion in this area and appropriately may set a higher bar to reopen proceedings sua

sponte than following a timely motion. Cf. Kucana, 130 S. Ct. at 838 (noting that BIA

decisions must be accorded “due respect”). Even so, the BIA cannot exercise its

4

The Ninth Circuit has pointed to the limitations on motions to reopen in 8 U.S.C. § 1229a(c)(7)

as further constraining the BIA’s discretion. See Ekimian v. I.N.S., 303 F.3d 1153, 1157 (9th Cir. 2002).

Kucana made clear, however, that “[s]ection 1229a(c)(7) . . . is not directed to the agency’s discretion to

grant or deny motions to reopen. In the main, it simply lays out the requirements an alien must fulfill when

filing a motion to reopen.” 130 S. Ct. at 833 n.6 (internal quotation marks omitted). The same is true of

the regulatory provisions implementing § 1229a(c)(7) in 8 C.F.R. § 1003.2(c)(2)-(3).

No. 08-3859 Gor v. Holder Page 28

authority arbitrarily, irrationally, or in a manner that is contrary to law or the

Constitution.5

In this case, the BIA’s decision declining to reopen proceedings did not address

the extraordinary circumstances of Tushar Gor’s hearing, instead stating only that the

claims Gor raises could have been presented on appeal. Thus, on the strength of a single

sentence, Gor is now to be deported from the United States—the country in which he has

lived since the age of four—to India—a country that he has visited three times for a total

period of less than three months—despite the IJ’s apparent violation of his due process

rights and the colorable legal arguments that his deportation is contrary to law. Yet we

are barred from even considering whether the BIA’s cursory dismissal of Gor’s claims

was adequate in light of these circumstances and the reasonable possibility that Gor’s

ability to retain counsel and present his arguments on appeal also was impeded by the

IJ’s failure to provide a list of free legal-service providers. Given Kucana’s implicit

recognition that meaningful standards of review exist against which to evaluate BIA

decisions made pursuant to 8 C.F.R. § 1003.2, I can see no good reason why we should

not be able to assess whether the BIA appropriately exercised its authority here. Cf.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (noting that

bar to judicial review of agency action where there are no standards to apply is “a very

narrow exception” applicable only in “rare instances”).

Our sister courts have recognized that, following the Attorney General’s 2002

streamlining reforms—which cut the number of BIA members from twenty-three to

eleven and allowed single-member review of most appeals—board members must

review an enormous number of deportation cases, resulting in errors of disturbing

5

Indeed, several of our sister courts have suggested—even while employing language as sweeping

as that in Barry and Harchenko—that they retain jurisdiction to review constitutional challenges to BIA

refusals to reopen proceedings sua sponte. See Tamenut, 521 F.3d at 1005 (“Although this court lacks

jurisdiction over Tamenut’s challenge to the BIA’s decision not to reopen sua sponte, we generally do have

jurisdiction over any colorable constitutional claim.”); see also Nawaz v. Holder, 314 F. App’x 736, 736

(5th Cir. 2009) (“While we do not have jurisdiction to consider Nawaz’s non-constitutional challenges to

the BIA’s refusal to reopen his removal proceedings sua sponte, we retain jurisdiction to consider

constitutional challenges that were raised before the BIA.”); Lenis, 525 F.3d at 1294 (noting that “an

appellate court may have jurisdiction over constitutional claims related to the BIA’s decision not to

exercise its sua sponte power”).

No. 08-3859 Gor v. Holder Page 29

magnitude and frequency. See, e.g., Kadia v. Gonzales, 501 F.3d 817, 820-21 (7th Cir.

2007) (noting that one board member admitted to reviewing more than fifty cases in one

day and arguing that “[r]epeated egregious failures of the Immigration Court and the

Board to exercise care commensurate with the stakes in an asylum case can be

understood, but not excused, as consequences of a crushing workload that the executive

and legislative branches of the federal government have refused to alleviate”);

Benslimane v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005) (collecting cases from the

Second, Third, Seventh and Ninth Circuits where BIA adjudication “has fallen below the

minimum standards of legal justice”); Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.

2004) (reversing a decision that “was an embarrassment to the Agency on multiple

levels” and noting that while the 2002 reforms may “save an overburdened BIA from

unnecessary and redundant tasks,” they are not “a license for the BIA to say ‘not our

problem’”). Particularly in light of the present state of affairs at the BIA, we should not

so easily and unnecessarily relinquish our critical role in ensuring that the agency

properly exercises its awesome authority over deportation.