Diaz-Covarrubias v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARA DIAZ-COVARRUBIAS, 

Petitioner, No. 06-70447

v.

 Agency No.

A029-252-915

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 24, 2008—Pasadena, California

Filed January 9, 2009

Before: Consuelo M. Callahan and Sandra S. Ikuta,

Circuit Judges, and Milton I. Shadur,* District Judge.

Opinion by Judge Ikuta

*The Honorable Milton I. Shadur, Senior United States District Judge

for the Northern District of Illinois, sitting by designation.

175

DIAZ-COVARRUBIAS v. MUKASEY 177

COUNSEL

J. Jack Artz, Norwalk, California, for the petitioner.

Sarah Maloney, United States Department of Justice, Wash-

ington, D.C., for the respondent.

OPINION

IKUTA, Circuit Judge:

Sara Diaz-Covarrubias petitions for review of the BIA’s

refusal to “administratively close” her case. We hold that we

lack jurisdiction to do so, and accordingly dismiss her petition

for review.

I

Sara Diaz-Covarrubias (“Diaz”) is a thirty-five year-old

native and citizen of Mexico who attempted to enter the

178 DIAZ-COVARRUBIAS v. MUKASEY

United States without inspection in 1990. She was appre-

hended at the border but then released into the United States.

Ten years later, on October 6, 2000, the INS sent Diaz a

Notice to Appear, alleging that she was removable under 8

U.S.C. § 1182(a)(6)(A)(i) as an alien not lawfully admitted or

paroled into the United States.

Diaz conceded removability but applied for cancellation of

removal under 8 U.S.C. § 1229b based on hardship to her

minor daughter (a citizen) and her father (a lawful permanent

resident). The immigration judge (IJ) denied Diaz’s applica-

tion for cancellation of removal on September 30, 2004, hold-

ing that Diaz had not established that her removal would

cause “exceptional and extremely unusual hardship” to her

daughter or her father. The IJ granted her application for vol-

untary departure and issued a conditional order of removal in

the event that she failed to voluntarily depart. Diaz then filed

a Notice of Appeal with the Board of Immigration Appeals

(BIA), challenging the IJ’s hardship determination.

Before Diaz’s appeal brief was due, the United States Citi-

zenship and Immigration Services (USCIS) approved a peti-

tion for alien relative (or “Form I-130 petition”) that Diaz’s

sister, a United States citizen, had filed five years earlier for

Diaz’s benefit. The Immigration and Nationality Act (INA)

allows an immediate relative of a United States citizen to be

issued an immigrant visa or otherwise acquire the status of

lawful permanent resident. 8 U.S.C. § 1151(a), (b)(2)(A)(i).

For an alien to qualify as an immediate relative, a United

States citizen must file a Form I-130 petition on the alien’s

behalf, and the petition must be approved by the USCIS. 8

C.F.R. § 204.1(a); see also Diouf v. Mukasey, 542 F.3d 1222,

1225 n.1 (9th Cir. 2008). The USCIS’s approval of a Form I-

130 petition, however, does not make an alien automatically

eligible for adjustment of status under 8 U.S.C. § 1255(i).

Among other requirements, an immigrant visa must be “im-

mediately available.” 8 U.S.C. § 1255(i)(2)(B); see also

Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir. 2005). The

DIAZ-COVARRUBIAS v. MUKASEY 179

wait time for these immigrant visas is considerable: Diaz esti-

mates that a visa will not be available for her until 2013.

In addition to challenging the IJ’s denial of her application

for cancellation of removal, Diaz asked the BIA for adminis-

trative closure of her case until an immigrant visa became

available. “Administrative closure” is a procedure by which

an IJ or the BIA removes a case from its docket as a matter

of “administrative convenience.” In re Gutierrez-Lopez, 21 I.

& N. Dec. 479, 480 (BIA 1996) (quoting In re Amico, 19 I.

& N. Dec. 652, 654 n. 1 (BIA 1988)). This procedure is not

described in the INA or federal regulations, but the BIA has

stated that it will not administratively close a case if closure

is opposed by either of the parties. Id. The record does not

indicate that the Department of Homeland Security either

opposed or agreed to Diaz’s request for administrative clo-

sure.

On December 27, 2005, the BIA adopted the IJ’s decision

in its entirety. The BIA also denied Diaz’s request for admin-

istrative closure on the ground that “her eventual adjustment

of status is still speculative at this time,” because she “has not

shown prima facie eligibility” for adjustment of status.

II

In her petition for review, Diaz does not challenge the

BIA’s and IJ’s hardship determination, which we lack juris-

diction to review in any event. See 8 U.S.C.

§ 1252(a)(2)(B)(ii); Romero-Torres v. Ashcroft, 327 F.3d 887,

891 (9th Cir. 2003). Rather, she argues that the BIA abused

its discretion in denying her request for administrative clo-

sure. Before we reach the merits of her claim, we must deter-

mine whether we have jurisdiction to review the BIA’s denial.

“[W]e have jurisdiction to determine our own jurisdiction,”

Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), and

an obligation to do so sua sponte, Spencer Enters. v. United

States, 345 F.3d 683, 687 (9th Cir. 2003).

180 DIAZ-COVARRUBIAS v. MUKASEY

Although we have not previously addressed our jurisdiction

to consider denials of requests for administrative closure, we

are guided by our prior decision in Ekimian v. INS, 303 F.3d

1153 (9th Cir. 2002), which involved a substantially similar

issue. In Ekimian, the BIA had denied a motion to reopen on

the ground that it was untimely and declined to reopen pro-

ceedings sua sponte. On appeal, we upheld the BIA’s determi-

nation that the motion was untimely. We also considered the

petitioners’ argument that the BIA abused its discretion by

declining to reopen the proceeding sua sponte under 8 C.F.R.

§ 3.2(a) (now codified at 8 C.F.R. § 1003.2(a), see 68 Fed.

Reg. 9824, 9830 (Feb. 28, 2003)), which states:

The Board may at any time reopen or reconsider on

its own motion any case in which it has rendered a

decision. A request to reopen or reconsider any case

in which a decision has been made by the Board,

which request is made by the Service, or by the party

affected by the decision, must be in the form of a

written motion to the Board. 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.

[1] Based on the language of the regulation, we determined

that we lacked jurisdiction to review the BIA’s refusal to

reopen the proceeding sua sponte. See Ekimian, 303 F.3d at

1157-58. Our determination took into account the following:

(1) the federal regulation that allowed the BIA to reopen pro-

ceedings sua sponte did “not specify a standard (even a dis-

cretionary standard) that the BIA should apply in deciding

whether to reopen”; (2) “no statutory language authorizes the

BIA to reopen a deportation proceeding sua sponte”; and (3)

no precedential BIA decision specified a standard for exercis-

ing its sua sponte authority to reopen. Id. (italics in original).

Although a prior BIA decision, In re J-J-, 21 I. & N. Dec. 976

DIAZ-COVARRUBIAS v. MUKASEY 181

(BIA 1997), had stated that the Board had the authority “to

reopen proceedings sua sponte in exceptional situations,” we

held that “an acknowledgment by the BIA that it may reopen

proceedings, and a statement that it will do so under ‘excep-

tional situations,’ without more,” did not give us the jurisdic-

tion to review the BIA’s decision for abuse of discretion.

Ekimian, 303 F.3d at 1157-58 (quoting In re J-J-, 21 I. & N.

Dec. at 984). In this regard, we noted that “the BIA provided

no explanation as to what constitute ‘exceptional situations’—

except that the facts in In re J-J- failed to describe them.” Id.

at 1158. We therefore concluded: “Because we cannot dis-

cover a sufficiently meaningful standard against which to

judge the BIA’s decision not to reopen under § 3.2(a), we

hold that we do not have jurisdiction to review the Ekimians’

claim that the BIA should have exercised its sua sponte

power.” Id. at 1159.

[2] In reaching this conclusion, we also took guidance from

Heckler v. Chaney, 470 U.S. 821 (1985), which held that sec-

tion 701(a)(2) of the Administrative Procedure Act (preclud-

ing review of an “agency action . . . committed to agency

discretion by law”) barred judicial review of the FDA’s

refusal to bring enforcement actions to prevent the use of

lethal-injection drugs in executions. See 470 U.S. at 832

(“[A]n agency’s decision not to take enforcement action

should be presumed immune from judicial review under

§ 701(a)(2).”). We read Heckler as “[e]mphasizing that agen-

cies are better equipped than courts to prioritize administra-

tive concerns and actions,” and noted the Court’s

determination that:

even where Congress has not affirmatively precluded

review, 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 dis-

cretion. In such a case, the statute (“law”) can be

taken to have “committed” the decisionmaking to the

agency’s judgment absolutely. . . . [I]f no judicially

182 DIAZ-COVARRUBIAS v. MUKASEY

manageable standards are available for judging how

and when an agency should exercise its discretion,

then it is impossible to evaluate agency action for

“abuse of discretion.”

Ekimian, 303 F.3d at 1158 (omissions and alterations in origi-

nal) (quoting Heckler, 470 U.S. at 830). Other circuits have

similarly applied Heckler to hold that the absence of a “mean-

ingful standard” precludes review of the BIA’s refusal to

reopen a case sua sponte. See Enriquez-Alvarado v. Ashcroft,

371 F.3d 246, 249 (5th Cir. 2004) (also quoting Ekimian’s

requirement that there be a “sufficiently meaningful stan-

dard”); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.

2003) (also citing Ekimian); Luis v. INS, 196 F.3d 36, 41 (1st

Cir. 1999) (holding that under Heckler the court lacked juris-

diction to review the BIA’s refusal to reopen sua sponte

because “[t]here are no guidelines or standards which dictate

how and when the BIA should invoke its sua sponte power”).

[3] Applying Ekimian leads to the same conclusion in this

case. First, as in Ekimian, there is no statutory basis for

administrative closures. Nor is there any regulatory basis for

administrative closures. Moreover, the BIA has not set forth

any meaningful standard for exercising its discretion to imple-

ment an administrative closure. Under the handful of cases

considering administrative closures, the BIA has stated only

that administrative closure is an “administrative conve-

nience,” and “[a] case may not be administratively closed if

opposed by either of the parties.” In re Gutierrez-Lopez, 21 I.

& N. Dec. at 480. This language does not provide any guid-

ance to the BIA regarding when it should exercise its discre-

tion to grant administrative closure. Indeed, it gives even less

guidance than the BIA’s statement that it could reopen pro-

ceedings sua sponte “in exceptional situations,” which we

found insufficient to allow review in Ekimian. Id. at 1157.

Accordingly, we must conclude that “[b]ecause we cannot

discover a sufficiently meaningful standard” for evaluating

the BIA’s decision not to close a case, we lack jurisdiction to

DIAZ-COVARRUBIAS v. MUKASEY 183

review Diaz’s claim that the BIA abused its discretion in not

doing so. Id. at 1159.

Alcaraz v. INS, 384 F.3d 1150 (9th Cir. 2004), is not to the

contrary. In Alcaraz, we considered the situation of two peti-

tioners who had been statutorily eligible for suspension of

deportation at the time they applied for such relief, but who

were subsequently made ineligible by the enactment of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (IIRIRA). Id. at 1152-53. Implementing the authority

provided by IIRIRA, the Attorney General issued policy

directives instructing the BIA to administratively close the

cases of aliens harmed by this retroactive ineligibility and

allow them to be placed in removal proceedings where they

could seek cancellation of removal. Id. at 1154 (referring to

this procedure as “repapering”). In determining whether we

had jurisdiction to review the BIA’s failure “to consider [the

petitioners] for repapering,” we acknowledged that, under the

reasoning of Heckler v. Chaney, we lack jurisdiction “where

statutes are drawn in such broad terms that in a given case

there is no law to apply.” Id. at 1153, 1161. In Alcaraz, how-

ever, we held that the Attorney General’s broad discretion

“has been legally circumscribed by various memoranda

through which the INS implemented its repapering policy.”

384 F.3d at 1161. We concluded that the “no law to apply”

problem under Heckler does not arise where there are “estab-

lished agency policies” against which to evaluate the agency’s

action. Id. (quoting Mendez-Gutierrez v. Ashcroft, 340 F.3d

865, 868 (9th Cir. 2003). We therefore held that we had juris-

diction to review the denial of administrative closure in the

repapering context. Id.

The present case is different. The detailed policy directives

at issue in Alcaraz have no application to Diaz’s case. As

noted above, there is no law to apply, either in the form of an

“established agency polic[y]” or otherwise. Alcaraz, 384 F.3d

at 1161. And as Alcaraz itself explained, we lack jurisdiction

to review an agency’s decisions under such circumstances. Id.

184 DIAZ-COVARRUBIAS v. MUKASEY

Nor does Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th

Cir. 2008), require a contrary conclusion. In Sandoval-Luna,

we considered whether we had jurisdiction over an IJ’s deci-

sion to deny a petitioner’s request for a continuance. See id.

at 1246. The government argued that we lacked jurisdiction

to consider this issue under 8 U.S.C. § 1252(a)(2)(B)(ii),

which states that “no court shall have jurisdiction to review

. . . any other decision or action of the Attorney General . . .

the authority for which is specified under this subchapter to

be in the discretion of the Attorney General.” We rejected this

argument, instead adopting the reasoning of the First Circuit:

namely, that § 1252(a)(2)(B)(ii) was inapplicable because the

IJ’s authority to continue a case is contained in 8 C.F.R.

§ 1003.29 and related regulations, rather than in the “subchap-

ter” of the INA referred to in § 1252(a)(2)(B)(ii). Sandoval-

Luna, 526 F.3d at 1246 (citing Alsamhouri v. Gonzales, 484

F.3d 117, 122 (1st Cir. 2007)).

Sandoval-Luna does not direct our decision in this case.

Regardless whether § 1252(a)(2)(B)(ii) or other statutes affect

our jurisdiction to review denials of administrative closure,

Ekimian requires us to determine whether there is a legal stan-

dard to apply in evaluating the BIA’s action or inaction. We

did not consider this question in Sandoval-Luna because a

continuance is governed by a meaningful standard: an IJ may

grant a motion for a continuance “for good cause shown.” 8

C.F.R. § 1003.29; accord Baires v. INS, 856 F.2d 89, 91 (9th

Cir. 1988) (holding that an alien has demonstrated “good

cause” if a continuance is necessary to protect an alien’s pro-

cedural rights, and that the BIA abuses its discretion if it

denies a motion in those circumstances). By contrast, Diaz

has not pointed to any standard that the BIA could have mis-

applied in denying her request for administrative closure,

much less a “sufficiently meaningful” standard as required

under Ekimian. 303 F.3d at 1159.

Because our analysis in this case is governed by Ekimian,

we do not follow the Sixth Circuit’s determination in Garza-

DIAZ-COVARRUBIAS v. MUKASEY 185

Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007), that

it had jurisdiction to review a denial of administrative closure

by the BIA. In that case, the Sixth Circuit held that neither

§ 1252(a)(2)(B)(ii) nor § 1252(g)1 precluded its review of a

denial of administrative closure. See id. at 242 & n.2. The

Sixth Circuit did not address the question whether there were

meaningful standards to apply. See Heckler v. Chaney, 470

U.S. at 830. But we are bound by Ekimian to consider this

issue.

III

[4] “Because we cannot discover a sufficiently meaningful

standard against which to judge the BIA’s decision,” Ekimian,

303 F.3d at 1159, we lack jurisdiction to review the BIA’s

denial of Diaz’s request for administrative closure.2 Accord-

ingly, Diaz’s petition for review is DISMISSED.

1

Section 1252(g) states that “no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under” the Immigration

and Nationality Act.

2

We therefore do not reach the merits of Diaz’s argument that the BIA

erred in concluding that Diaz’s ability to later obtain adjustment of status

was “speculative,” or her argument that the BIA’s refusal to administra-

tively close her case violated 8 C.F.R. § 1240.11(a)(2) and (e) by denying

her the opportunity to apply for adjustment of status based on her sister’s

approved Form I-130 petition.