Amicus Curiae Brief — Mata v. Holder, 135 S. Ct. 1039 (2015) (No. 14-185)

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

an The

Supreme Court of the Anited States

NOEL REYES MATA,

Petitioner,

Vv.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR AMICUS CURIAE IN

SUPPORT OF THE JUDGMENT BELOW

BY INVITATION OF THE COURT

WILLIAM R. PETERSON

Counsel of Record

CHARLES R. FLORES

BECK REDDEN LLP

1221 McKinney Street

Suite 4500

Houston, TX 77010

(713) 951-6236

wpeterson@beckredden.com

ee _

COCKLE LEGAL BRIEFS (800) 725-4864

WWW COCKLELEGALBRIEPS COM

QUESTIONS PRESENTED

Whether, when a petition for review of a motion

to reopen challenges the Board of Immigration Ap-

peals’ denial of equitable tolling, a court of appeals

errs in dismissing for want of jurisdiction. More spe-

cifically:

1. Is the 90-day statutory deadline for filing a

motion to reopen subject to equitable tolling?

2. If not, does a court of appeals err in constru-

ing an argument for equitable tolling as pertaining to

the Board’s exercise of its sua sponte authority to

reopen?

3. Does a court of appeals have jurisdiction to

review the Board’s failure to exercise its sua sponte

authority to reopen?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........................eeeeeees i

ee A Stace cnitiecscciccicewocesctonietnniantins ii

ee BF i, 8, , iv

INTEREST OF AMICUS CURIAE...................2020+- 1

IT vcncesntccunisivtniienneineiindbinitmaenns 2

ITE cnstsnccciscerssesenntadesscnieauniemmmmsiaiiaiiaddamiiiaa 3

A. Statutory and Regulatory Background ..... 3

B. Facts and Procedural History ................... 7

SUMMARY OF ARGUMENT ......................220c000000 11

SE viovisnsvenituninisetnpninnesiiiniieiiieeaiian 14

I. THE DEADLINE FOR FILING MOTIONS

TO REOPEN IS NOT SUBJECT TO EQ-

CFE SEED sdnsccwssncinnincticmsncnmmniene 14

A. The statute’s plain text does not per-

mit equitable tolling.............................. 15

B. Background principles of law do not

create an implied equitable tolling ex-

ception to the deadline for filing a mo-

ey Bi isc ccnsicevenccisvecinessnnininenenctades 17

1. The presumption of equitable toll-

ing applies only to statutes of limi-

SID cccencccscnsitinscsevisicdandensiemmmaiieaninats 18

2. The deadline for filing a motion to

reopen is not a statute of limita-

SEED se vececesnscssavsvsssonsnstivensmiddiadianaauatel 21

TABLE OF CONTENTS — Continued

Page

C. Board decisions do not provide a basis

TCE 24

1. No deference is proper because the

statute is not ambiguous.................. 24

2. The Board has not interpreted the

statute to permit equitable tolling..... 27

D. In establishing a firm deadline, Con-

gress struck a balance between accu-

I Se eer 33

Il. BECAUSE EQUITABLE TOLLING IS UN-

AVAILABLE, AN ARGUMENT FOR EQ-

UITABLE TOLLING IS PROPERLY CON-

STRUED AS AN ARGUMENT THAT THE

BOARD SHOULD HAVE REOPENED

UIT hiitndentcadbisccsivonssesscesssesccesooooses 35

Ill. THE COURTS OF APPEALS HAVE NO

JURISDICTION OVER THE BOARD’S

FAILURE TO EXERCISE ITS SUA SPONTE

TABLE OF AUTHORITIES

Page

CASES:

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)............. 18

Astoria Fed. Sav. & Loan Assn. v. Solimino,

a I eeenendademiammnadl 19

Beneficial Nat'l Bank v. Anderson, 539 U.S. 1

TTT ETE D eT neS Se ROOST Tee ENT SET EE ETE 36

Bowles v. Russell, 551 U.S. 205 (2007) ...................06 18

Carlisle v. United States, 517 U.S. 416 (1996)........... 18

Chevron, U.S.A., Inc. v. Natural Res. Def. Coun-

cil, Inc., 467 U.S. 837 (1984)................. 12, 24, 28, 31

CTS Corp. v. Waldburger, 134 S.Ct. 2175

SESE a Ne EE 21

Custer v. McCutcheon, 283 U.S. 514 (1931)............... 22

Dada v. Mukasey, 554 U.S. 1 (2008) ................ 7, 26, 42

Eberhart v. United States, 546 U.S. 12 (2005)........... 34

FCC v. Fox Television Stations, Inc., 556 U.S.

ET ren: ew eR 32

Gonzales v. Oregon, 546 U.S. 243 (2006) ................... 24

Haines v. Kerner, 404 U.S. 519 (1972) ...........0..00..000ee 37

Hallstrom v. Tillamook County, 493 U.S. 20

TTI niinnemaneipnednanenemmcetabeiadatueeeesiiicacieieieaiaidanteall 20

Hamm v. Saffle, 300 F.3d 1213 (10th Cir. 2002)........ 35

Heckler v. Chaney, 470 U.S. 821 (1985)........... 2, 13, 40

TABLE OF AUTHORITIES — Continued

Page

Heimeshoff v. Hartford Life & Accident Ins. Co.,

I el 21

Henderson v. Shinseki, 131 S. Ct. 1197

RRR SE ye Sete eeke ees 17, 18, 21, 22

Holder v. Martinez Gutierrez, 132 S. Ct. 2011

RAE SIE SCR RCE ES Sa ee 31

Holland v. Florida, 560 U.S. 631 (2010).................... 19

Houston v. Lack, 487 U.S. 266 (1988) .......................- 33

ICC v. Brotherhood of Locomotive Eng’rs, 482

RE EE SRE Ne 37, 39, 42

INS v. Abudu, 485 U.S. 94 (1988) .............2.....2-ceceeeeee 22

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ............. 41

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89

RESET eee A a ste: SPREE 17, 19, 20, 23

Jama v. ICE, 543 U.S. 335 (2008)..................cceceeeeeees 28

Jinks v. Richland County, 538 U.S. 456 (2003)......... 23

John R. Sand & Gravel Co. v. United States,

I 19

Kontrick v. Ryan, 540 U.S. 443 (2004) ....................... 18

Kucana v. Holder, 558 U.S. 233 (2010).................. 2, 42

Lin v. Mukasey, 286 Fed. Appx. 148 (5th Cir.

ESSERE Sen ener aen es eee Lee ree 10, 14

GR cnscescvestccndconceniiepeniesessizesevendedcumsenemsernaiett passim

TABLE OF AUTHORITIES ~ Continued

Page

Mahn v. Attorney Gen., 767 F.3d 170 (3d Cir.

TA hssicineiadisaetcinicieshcnieeteninaneillasideaadameanaiansaneneebieateineeenti 28

Marmolejo-Campos v. Holder, 558 F.3d 903 (9th

SUTIN, TT iccchceensenibcitnigueetenpaeinbnmnabeimimddnesbeininmmiiduentmninbenete 28

Morelock v. Ware, 815 F.2d 79 (6th Cir. 1987) ........... 36

Owen v. City of Independence, 445 U.S. 622

ITT isoeieiaileediesheieeeipeaiannatlnnaaeeitthiehtaaiaiichidnaiialiidsiie 20

Perez v. Mortgage Bankers Ass’n, 135 S. Ct.

Nahant cient 31

Petrella v. Metro-Goldwyn-Mayer, Inc., 134

es. Canna nsec iaciehaitaeaiaeiatnsdeeitiearnieainanianieanileanannii 19

Pierson v. Ray, 386 U.S. 547 (1967) .................2..2.c0eee 20

Porter v. Adams, 244 F.3d 1006 (9th Cir. 2001)......... 35

Powell v. Fleming, 27 Fed. Appx. 970 (10th Cir.

ST icsnschciehianiiehihitdenesdinieieaamiscneasingibnelptaipabiaibiaaland 36

Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th

STI Ti csiniitstinistnitcibiesteieiiadicieeeiadinibaunanibeniaiaaniiel 10, 30, 38

Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.

aT RITE icrchinpeciehiciieicnlenslabiicietininimabchienieiaeiinesiniaaiempiinie passim

SEC v. Chenery Corp., 318 U.S. 80 (1943)................. 39

Stone v. INS, 514 U.S. 386 (1995)......................000 5, 22

Taylor v. Freeland & Kronz, 503 U.S. 638

Siri hcccsasctihiilieibdiednapeeeaibiehidiipataenieiadiaiaialianliseiitabaidaiiantl 33

United States v. Brockamp, 519 U.S. 347 (1997)....... 20

United States v. Holt, 417 F.3d 1172 (11th Cir.

Vii

TABLE OF AUTHORITIES — Continued

Page

United States v. Locke, 471 U.S. 84 (1985) ................ 33

United States v. Mead Corp., 533 U.S. 218

ITT ccetiaesiehiitedaeitiaeeasiibiadannaiiinidinipeniiaadannmpeindiniminti 28, 31

United States v. Torres, 282 F.3d 1241 (10th

IIIT rsniicierschieemiacinsdiiatinennnretritaadnasianbliamsamseiisainstil 35

United States v. Western Pacific Railroad Co.,

a i eeulieiibbameasiand 22, 23

United States v. Williams, 185 Fed. Appx. 917

i coisininmanabielnemeiibeiail 36

Vermont Yankee Nuclear Power Corp. v. NRDC,

3 EE ae 23, 25, 27

Walber v. HUD, 897 F.2d 530 (6th Cir. 1990)

ITI dices tnicmietaditenimnnntietanicndsaennnenininiensiendl 36

Young v. United States, 535 U.S. 43 (2002) ............... 19

ADMINISTRATIVE DECISIONS:

Matter of Anselmo, 20 I. & N. Dec. 25 (B.1.A.

RTE EEE AE en ewe ARLEN NT NE eee. 28

In re Armando Moreno, No. A023555408, 2014

WL 3795516 (B.1.A. June 17, 2014).................. 30, 38

Matter of Compean, 25 Il. & N. Dec. 1 (US.

EEE Saran eee emsieee ee a aare reo 30, 38

In re Diaz, No. A074081757, 2009 WL 2981747

RS EEE ee eer 30

In re Escobar, 24 1. & N. Dec. 231 (B.I.A. 2007)........ 31

vill

TABLE OF AUTHORITIES — Continued

Page

In re Fernando Manuel Herrera De Avila, No.

A096095631, 2011 WL 7071006 (B.1.A. Dec.

EAE E a eee ee + Se en 30, 38

In re Julio Alexander Guzman-Vasquez, No.

A044002033, 2014 WL 1118477 (B.LA. Feb.

TTT Gh ech ctiisicubdicittataiamnicinhinbidaldininieiiatiitiianinbiddnitinnniinene 29

Matter of K-S-, 20 Il. & N. Dec. 715 (B.1LA.

I sconusshciapesnatindsnnnntdidemeumnininundiiuaiseaiadiindiiaiabiaiidiesatins 28

In re Khurram Jehangir Khan, No. A78442144,

2007 WL 2074553 (B.1.A. June 15, 2007)............... 29

Matter of Lozada, 19 I. & N. Dec. 637 (B.1.A.

IT caisnsiinesitinnanianennanenieaseamuensibiieniaaniedediidiiandiitmmeneedl 41

In re Marbel Balmore Moreno, No. A097310769,

2012 WL 3911861 (B.LA. Aug. 28, 2012) ............... 30

In re Segundo Antonio Rodriguez Rodriguez,

No. A37922683, 2007 WL 2074548 (B.1.A.

TTT AER cA See eNO 29

In re Sergio Ibarra-Amaya, No. A041776122,

2013 WL 2608334 (B.1.A. May 28, 2013) ............... 29

In re Uriah Small, No. A076565011, 2013 WL

4041234 (B.1.A. July 30, 2013) ...........................000. 29

STATUTES, RULES, AND REGULATIONS:

8 U.S.C.:

EE eae aes ee es See Oe 4

I hi a ic 16

ED IIUE? ccdbetosesemscescensccnseesesnnsennientinnisenienned 4

TABLE OF AUTHORITIES — Continued

Page

ER eee cee a OR MO TN 7

TESTE SERN Re ape ee ne ee ener Benen ei 4

Ea ae eee ee eR ee aT TE 3

Ee Oe eee ee one ne NET noe ee 3

ET a ee ae ene ee mee 3,4

ET a a TT ELE EN EE 4

TE ee ee ee 16

EELS eae nen aee een er ea ee 16

Tins ec tinea eiiaeienininatiendmemebetinadiiniia 4

EE ee a oe DE ee 7

EE ee ee aN passim

FETE ae MERE ES. 15

TT On aN See 16

a eee KER E aR 15

1229a(cK 7 C\iv)(IIT)........... i sciaaieieididlebaneiibinebetedeaiinenes 15

ET, SAREE Ercan RC EE. 7

a ee Daa Re Te ee SOE EMER 4

eae Rae eer ereneeere a ie Re nnn Se enna smn ree 4

SIT cn cnsantadadduscndinuneinnindemnnenienstindesieesmmenneniiel 4

aaa i learn 10

ae 16

ESSERE Deep Oee eae nnn nee N ano DRE EEE 5

Sitch elcid leaeiadieninaniinamieiniddiieadiad 4

TABLE OF AUTHORITIES — Continued

Page

28 U.S.C

EEE ee me a ee aE Oe 35, 36

EL tee eee eee Ree REM ERE Te 36

EE Se ee ne Nee Se OREN Se 35, 36

42 U.S.C

EAA a Oe me a vee Se OER RT 36

EE ES eo ae ee Se IE eRe ee EE EN ee 36

EI EE See. eee ane ae aN TEE RY oS 20, 36

8 C.F.R.

EET ee ee en ee ee Bee eee eT re 4

Eee nee es Owe SSeS ee ees 3

| TEETER eee eee ee ae One eR OE 3

TE ee ae kee ee ee ee 8

Ee ek Ee ey 3

SE ee ee es eee ee Ree 5

Tc ee a ae a Te 2, 30

TE SS eee ene Nee Eee. 14, 15, 24

TTR ea reer eee SNORE ON OT 34

Te ee eR ee a SN ae 3

ETE Re en eo SEEN SEE Sa NOTE ae ae 3

EERE Sn ae a Re ne AT Lees 4

SE een ee eS ne ee a 4

EN eee eae ane Se ae SL NNN, ae 3

TER Se ae ee ee ee 4

TTS TEATS ET AE ERIE CS OT OE ODO 4

TABLE OF AUTHORITIES — Continued

Page

142 Cong. Rec.:

H2388 (daily ed. Mar. 19, 1996) ......................ceeee 17

S4599 (daily ed. May 2, 1996) ..................cccssccseccees 17

Federal Register:

Bee Ss Bs I, i, BIIIIID venccvcccccteccsocccccecccssoosecs 5

59 Fed. Reg. 29,386 (proposed June 7, 1994)........... 5

59 Fed. Reg. 29,388 (proposed June 7, 1994)........... 5

60 Fed. Reg. 24,573 (proposed May 9, 1995)............ 6

60 Fed. Reg. 24,574 (proposed May 9, 1995)............ 6

61 Fed. Reg. 18,900 (April 29, 1996).................. 6, 32

61 Fed. Reg. 18,901 (April 29, 1996).................. 6, 32

61 Fed. Reg. 18,902 (April 29, 1996)............... ...6, 32

es Bat SES Bee CII OP GD cecrccccccasecsccectensecsecccncesess 34

I i ta ectesdehiemipaescacibagiiniamalae 22

Fed. R. Crim. P. 45(b) (1994 ed.) .......... 2. cece ce eeeeee ee eee 34

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-

208, 110 Stat. 3009-546 (1996)....................0..22.. 7,16

Immigration Act of 1990, Pub. L. No. 101-649,

§ 545(d), 104 Stat. 4978 (1990).......................ccseecenes 5

Sup. Ct. R

ERS CRESS SRR atau ora oe ns EET PRE 14

SRE ODE ASE Arenees sees eo COOP eR eine eae ee oe SER A 14

xii

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

Administrative Office, Judicial Business of the

United States Courts 2014, Table B-9 (Sept.

a ERE acre be aa eR ne Se Re 37

News Release, Executive Office for Immigra-

tion Review, Board to Begin Providing Copy

of Decision to Aliens Who Are Represented

by Counsel (Dec. 19, 2008), available at http://

www.justice.gov/eoir/press/08/BIAProvides

Ce I crcicscciccscccnsscnnscovessecccscecueceees 9

Scott Dodson, Mandatory Rules, 61 Stan. L.

STINE, 08 SITTIN icureetinandisiamedebieienmmnpinnadinteimenntienins 18, 34

12 J. Moore, Moore’s Federal Practice, 9 59.11[4][a]

RGR A EN aN RN ES TRE SER Re 35

No. 14-185

gn The

Supreme Court of the Gnited States

NOEL REYES MATA,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR AMICUS CURIAE IN

SUPPORT OF THE JUDGMENT BELOW

BY INVITATION OF THE COURT

INTEREST OF AMICUS CURIAE

This brief is submitted by William R. Peterson,

amicus curiae in support of the judgment below, by

invitation of the Court. See 574 U.S. ___ (order of

January 16, 2015).’

' Amicus affirms, under this Court’s Rule 37.6, that no counsel

for a party authored any part of this brief and that no person

other than amicus and his co-counsel has made a monetary

contribution to fund its preparation or submission.

INTRODUCTION

Two sources of authority permit the Board of Im-

migration Appeals (Board) to reopen removal proceed-

ings. By statute, an alien has the right to file a single

motion to reopen within 90 days of the date of entry

of a final administrative order of removal. 8 U.S.C.

1229a(c)(7(C)(i). By regulation, the Board has the

discretion to reopen any case at any time on its own

motion. 8 C.F.R. 1003.2(a).

The source of authority exercised by the Board

determines the availability of judicial review. Courts

generally have jurisdiction to review the Board’s de-

nial of a statutory motion to reopen. See Kucana v.

Holder, 558 U.S. 233 (2010); Pet. Br. 14-16; U.S. Br.

16-28. Amicus and the government agree that courts

lack jurisdiction to review the Board's refusal to exer-

cise its regulatory discretion to reopen sua sponte. See

Heckler v. Chaney, 470 U.S. 821 (1985); U.S. Br. 35

n.13. Jurisdiction over an alien’s challenge to the de-

nial of reopening thus depends on which authority it

concerns.

Petitioner sought reopening after the 90-day

deadline, arguing in his petition for review that the

deadline should have been equitably tolled. In light of

circuit precedent providing that the statutory dead-

line cannot be equitably tolled, the Fifth Circuit

interpreted petitioner as arguing that the Board

should have reopened sua sponte based on principles

of equitable tolling. The Fifth Circuit dismissed the

petition, in part, for want of jurisdiction.

Thus, although the ultimate question concerns

whether the Fifth Circuit properly dismissed the peti-

tion for want of jurisdiction, the initial inquiry con-

cerns whether the deadline is subject to equitable

tolling, a question that has divided the lower courts

and on which the parties have joined issue.

STATEMENT

A. Statutory and Regulatory Background

1. Proceedings under Section 1229a of Title 8 of

the United States Code are “the sole and exclusive

procedure for determining whether an alien may be

admitted to the United States or * * * removed from

the United States.” 8 U.S.C. 1229a(a)(3).

Both the Department of Justice and Department

of Homeland Security participate in these proceed-

ings. Removal proceedings occur before immigration

judges. 8 U.S.C. 1229a(b)(1). Aliens may appeal de-

cisions of immigration judges to the Board, which

reviews the factual findings for clear error and ques-

tions of law de novo. 8 C.F.R. 1003.1(d\(3); 8 C.F.R.

1003.3; 8 C.F.R. 1003.38. The Office of the Chief Im-

migration Judge and the Board are subdivisions of

the Executive Office for Immigration Review within

the Department of Justice. 8 C.F.R. 1003.0; 8 C.F-R.

1003.1; 8 C.F.R. 1003.10.

The immigration laws are enforced by law-

yers from Immigration and Customs Enforcement, a

division of the Department of Homeland Security. See

8 U.S.C. 1103(a)(1); 8 C.F.R. 100.1.

An alien may be represented before the immi-

gration judge and Board, but counsel will not be ap-

pointed. 8 U.S.C. 1229a(b)\(4); 8 U.S.C. 1362; 8 C.F.R.

1003.16. Permissible representatives include attor-

neys, law students, accredited representatives, ac-

credited officials, and subject to certain constraints,

“reputable individual[s] of good moral character.” 8

C.F.R. 1292. 1(a).

Aliens subject to removal may apply for discretion-

ary cancellation of removal and adjustment of status

to lawful permanent resident. 8 U.S.C. 1229b(b)1).

Immigration judges act as the Attorney General’s

delegates in determining whether to grant this dis-

cretionary relief. 8 C.F.R. 1003.10(a). An alien seeking

cancellation of removal must prove that the alien

satisfies the eligibility requirements and merits a fav-

orable exercise of discretion. 8 U.S.C. 1229a(c)(4);

8 C.F.R. 1240.8(d). An alien who has been convicted of

a crime involving moral turpitude is not eligible for

cancellation of removal. 8 U.S.C. 1182(aX2\A)ixX1);

8 U.S.C. 1227(aX2KAXKiMD; 8 U.S.C. 1229b(b\1).

Judicial review of a final order of removal is gov-

erned by Section 1252 of Title 8 of the United States

Code. 8 U.S.C. 1252(b)(9). An alien may file a petition

for review with the court of appeals “not later than 30

days after the date of the final order of removal.” 8

U.S.C. 1252(bX1). The court of appeals will decide the

case based on the administrative record. 8 U.S.C.

1252(b)(4).

2. Two sources of authority permit removal pro-

ceedings to be reopened. First, for more than fifty

years, the Board’s regulations have provided it with

authority to reopen or reconsider cases on its own

motion. See 27 Fed. Reg. 96 (Jan. 5, 1962) (now cod-

ified at 8 C.F.R. 1003.2).

Second, an alien may file a statutory motion to

reopen. Congress first addressed reopening in the Im-

migration Act of 1990, Pub. L. No. 101-649, § 545(d),

104 Stat. 4978, 5063 (1990). In an effort “to expedite

petitions for review and to redress the related prob-

lem of successive and frivolous administrative ap-

peals and motions,” Congress “directed the Attorney

General to promulgate regulations limiting the num-

ber of reconsideration and reopening motions that an

alien could file” and “regulations specifying the max-

imum time period for the filing of those motions.”

Stone v. INS, 514 U.S. 386, 400 (1995). Congress

suggested a single motion filed within 20 days of the

final determination. Ibid.

A proposed rule first issued in 1994. Consistent

with the suggestions in the Conference Report, the

proposed rule allowed for only one motion to reopen

and required that the motion be filed within 20 days.

59 Fed. Reg. 29,386, 29,388 (proposed June 7, 1994).

In 1995, the proposed rule was revised in re-

sponse to comments expressing concern that “unrep-

resented aliens and, in particular, detained aliens

would not have access to counsel in time to develop

a meaningful motion to reopen within the 20-day

period.” 60 Fed. Reg. 24,573, 24,574 (proposed May 9,

1995). Based on these concerns, the agency agreed

that a greater time period — 90 days — should be al-

lowed for filing motions to reopen. /bid. Nonetheless,

even the revised rule would “dramatically limit this

form of relief” by restricting aliens to a single motion

to reopen and because “such opportunity for re-

opening will be limited to a 90-day time period.”

Ibid. These limits “reflect the congressional] intent

to streamline the deportation process, while providing

a reasonable opportunity for meritorious cases to be

heard.” Jbid.

In issuing a final rule in April 1996, the Depart-

ment of Justice adhered to the 90-day deadline and

responded to comments that “requested that a ‘good

cause’ exception to the time and number limitations

be added to the new provisions concerning motions to

reopen.” 61 Fed. Reg. 18,900, 18,901-18,902 (April 29,

1996). The Department of Justice rejected the sug-

gested “good cause” exception: “The Department does

not agree with the commenters’ suggestions that a

‘good cause exception’ would be an appropriate proce-

dural mechanism for addressing exceptional cases

that fall beyond this rule’s time and number limita-

tions.” Jbid. Instead, the Board’s authority to reopen

sua sponte “provides a procedural vehicle for the con-

sideration of cases with exceptional circumstances.”

Ibid.

Congress later passed the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). Sec-

tion 304 establishes a statutory 90-day deadline to

file a single motion to reopen, subject to certain ex-

ceptions. Jd. § 304 (codified as amended at 8 U.S.C.

1229a(c)(7)). This statute “transform[ed] the motion

to reopen from a regulatory procedure to a statutory

form of relief.” Dada v. Mukasey, 554 U.S. 1, 14

(2008).

B. Facts and Procedural History

1. Petitioner Noel Reyes Mata, who was born in

Mexico, entered the United States without being ad-

mitted. A.R. 214-215. Petitioner was arrested in

August 2010 for assaulting his wife, A.R. 535, 541,

and pleaded guilty in September. A.R. 526. The

judgment notes that petitioner was convicted of an

offense that involves family violence. A.R. 526.

After this conviction, DHS issued a Notice to Ap-

pear — the document that initiates removal proceed-

ings — charging petitioner with being subject to re-

moval as an alien present in the United States

without being admitted or paroled. A.R. 562-563. See

also 8 U.S.C. 1229a(e)(2A); 8 U.S.C. 1182(aX6 Ai).

Petitioner’s first individual hearing before an im-

migration judge occurred in January 2011. Petitioner’s

counsel conceded that petitioner was removable

but explained that he would request cancellation of

removal. A.R. 196-197. Counsel filed a lengthy appli-

cation in May. A.R. 212-519.

At an August hearing on this application, the

government provided records of petitioner’s convic-

tion. See J.A. 15 (admitting A.R. 520-568). The immi-

gration judge concluded that this conviction rendered

petitioner ineligible for cancellation of removal. J.A.

19; J.A. 6-13.

2. Petitioner’s counsel filed a timely notice of

appeal to the Board. A.R. 173-176. The notice indicat-

ed an intent to file a separate written brief. A.R. 174.

No brief was filed.

DHS sought summary affirmance with a two-

page motion, arguing that the immigration judge

“correctly determined that the respondent was statu-

torily ineligible for cancellation of removal.” A.R. 143.

On September 21, 2012, the appeal was summar-

ily dismissed by a single Board member. J.A. 4-5. See

also 8 C.F.R 1003.1(d)(2) (discussing summary dis-

missals). The decision noted that the notice of appeal

did not identify specific challenges to the immigration

judge’s decision and that petitioner did not file a

brief. J.A. 4-5. The 90-day deadline for filing a motion

to reopen began to run at this point. 8 U.S.C.

1229a(c)(7 KC\i).

Notice of this decision was sent directly to peti-

tioner. A.R. 138. Since 2009, the Board has provided a

copy of its final decision to all aliens in proceedings,

“regardless of whether the alien is represented by

counsel.” See News Release, Executive Office for Im-

migration Review, Board to Begin Providing Copy of

Decision to Aliens Who Are Represented by Counsel

(Dec. 19, 2008), available at http://www.justice.gov/

eoir/press/08/BIAProvidesCourtesyCopy 121908. pdf.

By October 10, just 19 days after the decision,

petitioner had retained new counsel who was “in the

process of filing a Motion to Reopen Mr. Reyes Mata’s

case.” A.R. 122-123.

3. Petitioner filed a motion to reopen on Janu-

ary 14, 2013, 115 days after the Board’s final decision.

A.R. 88. The motion does not acknowledge that it is

untimely, A.R. 88-95, and the record does not indicate

why the motion was filed out of time.

DHS opposed reopening for several reasons, in-

cluding that the motion “was filed more than 90 days

after the Board’s September 21, 2012 decision.” A.R.

77-78.

Petitioner’s response requested that the time bar

be excused because of “exceptional circumstances.”

A.R. 69. Petitioner did not expressly request either

equitable tolling or the Board’s exercise of its sua

sponte authority to reopen. He simply asserted that

“(t]he motion is not time barred if the court finds

exceptional circumstances.” bid.

The motion to reopen was denied by a single

member of the Board. Pet. App. 6-9. Although one

sentence mentions tolling in passing, the decision

ultimately concludes that the motion “does not

demonstrate an exceptional situation that would war-

rant reopening as an exercise of discretion.” Pet. App.

9. “Accordingly, the untimely motion will be denied.”

Pet. App. 9.

4. Petitioner then filed a petition for review

with the Fifth Circuit. J.A. 1; 8 U.S.C. 1252(b)(2). In

his briefing, petitioner asked the Fifth Circuit to “re-

examine its holding in Ramos-Bonilla v. Mukasey

that motions to reopen before the Board of Immigra-

tion Appeals are not subject to equitable tolling.” Pet.

C.A. Reply Br. 8 (internal citation omitted). Petitioner

also argued that the Board’s exercise of its sua sponte

authority to reopen “is subject to judicial review.” Pet.

C.A. Br. 7-8.

A Fifth Circuit panel consisting of Judges Barks-

dale, Haynes, and Higginson denied relief in an

unpublished per curiam opinion. Pet. App. 1-3.

The Fifth Circuit holds that “equitable tolling

is not a basis for filing an untimely or numerically-

barred motion [to reopen} under the statute or regu-

lations.” Lin v. Mukasey, 286 Fed. Appx. 148, 150 (5th

Cir. 2008) (per curiam). As a result, an argument

for equitable tolling “is in essence an argument that

the BIA should have exercised its discretion to reopen

the proceeding sua sponte based upon the doctrine

of equitable tolling.” bid. See also Ramos-Bonilla v.

Mukasey, 543 F.3d 216, 220 (5th Cir. 2008) (citing Lin

for this proposition).

Following Ramos-Bonilla, the panel construed peti-

tioner’s argument for equitable tolling as an argument

that the Board should have exercised its discretion to

reopen sua sponte. Pet. App. 2. Consistent with other

circuits, the panel held that it lacked jurisdiction to

review the Board’s exercise of its discretion not to

reopen on its own motion because it had “no meaning-

ful standard against which to judge that exercise of

discretion.” Pet. App. 2-3. Accordingly, the panel

dismissed the petition in part and denied the petition

in part. Pet. App. 3.

SUMMARY OF ARGUMENT

The judgment of the Fifth Circuit should be af-

firmed.

1. The statutory deadline for filing motions to

reopen is not subject to equitable tolling. The text

contains no tolling provision. Section 1229a(c)(7)(C i)

requires that a motion to reopen before the Board be

filed within 90 days, and the exceptions to this dead-

line do not include equitable tolling.

Background principles do not counsel in favor of

implying an equitable-tolling exception to the stat-

utory deadline. Petitioner’s assertion that all non-

jurisdictional deadlines are presumptively subject

to equitable tolling is incorrect. Rather, background

principles suggest that statutes of limitations are

presumptively subject to equitable tolling. Lozano v.

Montoya Alvarez, 134 S. Ct. 1224, 1234 (2014). But

the deadline for filing a motion to reopen is not a

statute of limitations, and therefore this presumption

is inapposite.

The government agrees with amicus that peti-

tioner and the courts of appeals err in invoking this

presumption, U.S. Br. 37, but nonetheless reaches the

same result on different grounds. The government ar-

gues that deference to the Board supports the avail-

ability of equitable tolling, but this argument fails for

two reasons. First, the statute is unambiguous, and

therefore its plain language leaves no room for defer-

ence. Second, the Board’s decisions should not receive

Chevron deference because they are non-precedential

and have not interpreted the statute; in applying

equitable tolling, the Board has merely followed deci-

sions of the circuit courts. No deference is due to the

Board’s position.

Nor do policy grounds support an interpreta-

tion of the statute that includes equitable tolling. In

setting any deadline, Congress must balance the

interest in accuracy against the need for finality. The

90-day deadline should be enforced as written.

No source indicates that Congress intended for

this text to mean anything other than what it says:

“Except as provided” by express textual exceptions,

motions to reopen “shall be filed within 90 days.” 8

U.S.C. 1229a(cK7XCXi). The Fifth Circuit correctly

holds that equitabie tolling is unavailable.

2. Because equitable tolling is unavailable, the

Fifth Circuit committed no error in construing peti-

tioner’s tolling argument as pertaining to the Board’s

exercise of its sua sponte authority to reopen. When a

statutory motion to reopen is time-barred, the only

possibility for relief is for the Board to reopen on its

own motion. By construing petitioner's tolling argu-

ment as it did, the Fifth Circuit did not prejudice

petitioner; to the contrary, this construction gave pe-

titioner the benefit of an additional opportunity to

obtain relief. Even if not required to do so, appellate

courts (and the Board) act within their authority and

commit no error by focusing on a filing’s substance

instead of its form.

3. The courts of appeals lack jurisdiction over

challenges to the Board’s failure to reopen on its own

motion. The government and courts of appeals agree

that jurisdiction is absent because courts lack any

“meaningful standard against which to judge the

agency's exercise of discretion.” Heckler v. Chaney,

470 U.S. 821, 830 (1985). See U.S. Br. 35 n.13. Nei-

ther the regulations nor the Board’s decisions provide

such a standard.

The Fifth Circuit thus correctly: (1) determined

that petitioner’s arguments that equitable tolling ex-

cused the untimeliness of his motion to reopen could

not provide him with relief; (2) construed his argu-

ments as challenging the Board’s failure to reopen on

its own motion, the only possibility for reopening

after expiration of the statutory deadline; and (3) held

that it lacked jurisdiction to review the Board’s fail-

ure to exercise its sua sponte authority. The judgment

below should be affirmed.

ARGUMENT

I. THE DEADLINE FOR FILING MOTIONS

TO REOPEN IS NOT SUBJECT TO EQUI-

TABLE TOLLING.

Logically, the first issue is whether the deadline

is subject to equitable tolling.* The Fifth Circuit is

correct that this deadline is not subject to equitable

tolling. The text sets an inflexible 90-day deadline,

and there is no reason to believe that Congress meant

to include an implied exception for equitable tolling.

* The government is incorrect that whether equitable toll-

ing is available is “not before this Court and should not be ad-

dressed at this time.” U.S. Br. 14.

The question presented fairly includes the subsidiary ques-

tion of equitable tolling’s availability. See Sup. Ct. R. 14.1(a).

The premise of the Fifth Circuit’s construal rule is that the stat-

utory deadline cannot be equitably tolled. See Lin v. Mukasey, 286

Fed. Appx. 148, 150 (5th Cir. 2008) (per curiam) (“Because eq-

uitable tolling is not a basis for filing an untimely or numerically-

barred motion * * *.”).

The petition confirms that the scope of the question pre-

sented includes the availability of equitable tolling: “Petitioner

asks that the Court rule with finality that 8 U.S.C. § 1229a(cX7KCXi)

and 8 C.F.R. § 1003.2(cX2) are non-jurisdictional claim-processing

rules and hence are subject to equitable tolling without an im-

plied request for the BIA to exercise its sua sponte power.” Pet.

26-27.

Moreover, any assertion that this issue is not properly be

fore the Court should have been made before certiorari was

granted. See Sup. Ct. R. 15.2.

A. The statute’s plain text does not permit

equitable tolling.

“([W]Jhether equitable tolling is available is fun-

damentally a question of statutory intent.” Lozano v.

Montoya Alvarez, 134 S. Ct. 1224, 1232 (2014). This

statute establishes a firm deadline, which does not

provide for tolling: “Except as provided in this sub-

paragraph, the motion to reopen shall be filed within

90 days of the date of entry of a final administrative

order of removal.” 8 U.S.C. 1229a(cX7\C)i). The reg-

ulations repeat this deadline in nearly identical lan-

guage that is, if anything, more definite. See 8 C.F_R.

1003.2(c\2) (“must be filed no later than 90 days”).

Equitable tolling is inconsistent with this plain

text. Congress expressly provided that a motion to re-

open shall be filed within 90 days, and petitioner filed

his after 115 days. Equitable tolling would “effectively

exten[d] an otherwise discrete [deadline] set by

Congress.” Lozano, 134 S. Ct. at 1232.

The express exceptions “provided in this subpar-

agraph” indicate that Congress considered the cir-

cumstances in which equity would require a longer

deadline and did not include equitable tolling among

those exceptions. Congress eliminated the deadline

for a motion to reopen filed by an alien seeking asy-

lum if the motion is based on changed country con-

ditions. 8 U.S.C. 1229a(cK7KC\ii). And it included

more generous deadlines for motions filed by battered

spouses, children, and parents. 8 U.S.C. 1229a(cX7XCXiv).

See also 8 U.S.C. 1229a(cX7XC\XivKID) (permitting

the Attorney General to waive this time limitation “in

the case of an alien who demonstrates extraordinary

circumstances”). Similarly, Congress provided that

aliens who failed to appear at their removal hearing

may file a motion to reopen within 180 days. 8 U.S.C.

1229a(c)(7CXiii); 8 U.S.C. 1229a(bX5XCXi). If the

alien who failed to appear did not receive proper

notice or was held in federal or state custody, he or

she may file a motion to reopen at any time. 8 U.S.C.

1229a(b\5XCXii).

Moreover, when Congress intended other immi-

gration deadlines to include exceptions for good cause

or extraordinary circumstances, it wrote exceptions

expressly. For example, Congress provided that courts

may extend the deadline for filing briefs “upon motion

for good cause shown.” 8 U.S.C. 1252(bX3)(C). Sim-

ilarly, Congress provided that “extraordinary cir-

cumstances” may excuse an untimely application for

asylum. 8 U.S.C. 1158&aX2D). This Court should

heed Congress’s choice not to include a similar excep-

tion to 8 U.S.C. 1229a(cX7)\(C Xi).

Both the statute and regulations set a firm dead-

line. Absent some indication that Congress intended

for the deadline to include an implicit equitable toll-

ing exception, the statute should be enforced as writ-

ten.”

* To the extent that the legislative history of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

is material, it is consistent with not permitting equitable tolling

(Continued on following page)

B. Background principles of law do not

create an implied equitable tolling ex-

ception to the deadline for filing a mo-

tion to reopen.

The deadline for filing a motion to reopen is not

jurisdictional,* but petitioner overstates that conclu-

sion’s consequence. See Pet. Br. 18 (“[NJjonjurisdic-

tional rules are subject to a rebuttable presumption

in favor of equitable tolling.”) (emphasis and internal

quotation marks omitted). The presumption that stat-

utes of limitations are subject to equitable tolling

(sometimes called the /rwin presumption) applies

only to statutes of limitations. Lozano, 134 S. Ct. at

1234. See also Irwin v. Dep't of Veterans Affairs, 498

by indicating Congress’s concern with finality. Representative

Roukema explained that the bill “streamlines and expedites pro-

cedures for deporting and excluding illegal aliens.” 142 Cong

Rec. H2388 (daily ed. Mar. 19, 1996) (statement of Rep. Rouke-

ma). “Persons making legitimate claims of asylum must get one

hearing and one appeal — no more endless delays, appeals, and

readjudication of immigration cases.” [bid.

Senator Abraham criticized the manipulation of the immi-

gration laws by criminal aliens “requesting endless review of

their orders of deportation” and “abusing unduly generous pro-

visions of judicial and administrative review.” 142 Cong. Rec.

S4599 (daily ed. May 2, 1996) (statement of Sen. Abraham). He

explained that the reforms contained in the legislation “will go

still further in that direction [of stopping this manipulation)”

than earlier legislation. Jbid.

* The deadline is instead a “claim-processing” rule that re-

quired petitioner to “take certain procedural steps at certain

specified times.” Henderson v. Shinseki, 131 S. Ct. 1197, 1203

(2011). See also Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.

817, 825 (2013) (a “quintessential claim-processing rulfe]”).

U.S. 89 (1990). The presumption has no application to

deadlines that are not statutes of limitations, such as

the deadline for filing a motion to reopen.

1. The presumption of equitable tolling

applies only to statutes of limita-

tions.

The significance of a rule being “jurisdictional” is

well established. Jurisdictional rules “alte[r] the nor-

mal operation of our adversarial system” by imposing

an independent obligation on courts to consider ju-

risdiction at any time. Henderson v. Shinseki, 131

S. Ct. 1197, 1202 (2011). They therefore “can never be

forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S.

500, 514 (2006) (quoting United States v. Cotton, 535

U.S. 625, 630 (2002)). Courts may not “create equita-

ble exceptions to jurisdictional requirements.” Bowles

v. Russell, 551 U.S. 205, 214 (2007).

In contrast, non-jurisdictional rules may or may

not be subject to equitable tolling. See Scott Dodson,

Mandatory Rules, 61 Stan. L. Rev. 1 (2008). Claims-

processing rules may be “mandatory” without being

jurisdictional. Henderson, 131 S. Ct. at 1203. They may

set “inflexible” and “unalterable” deadlines. Kontrick

v. Rvan, 540 U.S. 443, 456 (2004). “[A] time limitation

may be emphatic, yet not jurisdictional.” Auburn

Reg’l Med. Ctr., 133 S. Ct. at 825 (describing Kontrick

in a parenthetical). See also Carlisle v. United States,

517 U.S. 416, 434 (1996) (Ginsburg, J., concurring)

(“It is anomalous to classify time prescriptions, even

rigid ones, under the heading ‘subject matter jurisdic-

tion.’”).

A presumption of equitable tolling applies only to

a subset of claims-processing rules: statutes of limita-

tions. Lozano, 134 S. Ct. at 1234. See also Young v.

United States, 535 U.S. 43, 49-50 (2002) (“Congress

must be presumed to draft limitations periods in light

of this background principle [that limitations periods

are customarily subject to equitable tolling].”); John

R. Sand & Gravel Co. v. United States, 552 U.S. 130,

137 (2008) (“[The Irwin] presumption seeks to pro-

duce a set of statutory interpretations that will more

accurately reflect Congress’ likely meaning in the

mine run of instances where it enacted a Govern-

ment-related statute of limitations.”); Holland v.

Florida, 560 U.S. 631, 645-646 (2010) (“[A]

nonjurisdictional federal statute of limitations is

normally subject to a rebuttable presumption in favor

of equitable tolling.”) (internal citations and quota-

tion marks omitted). Equitable tolling “applies when

there is a statute of limitations” and is “a rule of

interpretation tied to that limit.” Petrella v. Metro-

Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1975 (2014).

The source of this presumption is the principle

that Congress “legislate[s] against a background of

common-law adjudicatory principles,” which may cre-

ate atextual exceptions to statutory text. Lozano, 134

S. Ct. at 1232 (quoting Astoria Fed. Sav. & Loan

Assn. v. Solimino, 501 U.S. 104, 108 (1991) (alteration

in original)). For example, common-law immunity

doctrines were incorporated into Section 1983 “not-

withstanding § 1983’s expansive language and the

absence of any express incorporation of common-law

immunities.” Owen v. City of Independence, 445 U.S.

622, 637 (1980). Some principles are so firmly estab-

lished that this Court “presume[s] that Congress

would have specifically so provided had it wished” for

them not to apply. Pierson v. Ray, 386 U.S. 547, 555

(1967).

There is no background adjudicatory principle

that deadlines are generally subject to equitable toll-

ing, and this Court has repeatedly refused to extend

this presumption beyond statutes of limitations. See,

e.g., Lozano, 134 S. Ct. at 1234 (“[Wle have only ap-

plied that presumption to statutes of limitations.”);

Auburn Reg’l Med. Ctr, 133 S.Ct. at 827 (“Irwin

itself, and equitable-tolling cases we have considered

both pre- and post-Jrwin, have generally involved

time limits for filing suit in federal court. * * * We

have never applied the /rwin presumption [of equita-

ble tolling] to an agency’s internal appeal dead-

line[.]”); Hallstrom v. Tillamook County, 493 U.S. 20,

27 (1989) (distinguishing a pre-suit notice require-

ment from a statute of limitations in holding that it is

not subject to equitable tolling). Such an extension of

the rule — “assum[ing] an implied exception for tolling

virtually every time a number appears” in federal

statutes — would “work a kind of linguistic havoc.”

United States v. Brockamp, 519 U.S. 347, 352 (1997).

The presumption of equitable tolling applies only

if the deadline for filing a motion to reopen is a stat-

ute of limitations. It is not.

2. The deadline for filing a motion to re-

open is not a statute of limitations.

Formally, a statute of limitations “creates ‘a time

limit for suing in a civil case, based on the date when

the claim accrued.’” CTS Corp. v. Waldburger, 134

S. Ct. 2175, 2182 (2014) (quoting Black’s Law Dic-

tionary 1546 (9th ed. 2009)). Less formally, the

phrase “can refer to any provision restricting the time

in which a plaintiff must bring suit.” Jd. at 2185. See

also Heimeshoff v. Hartford Life & Accident Ins. Co.,

134 S. Ct. 604, 610 (2013) (“Statutes of limitations

establish the period of time within which a claimant

must bring an action.”).

Under this definition, the deadline for filing a

motion to reopen is not a statute of limitations. It

does not govern when suit must be initiated, a claim

filed, or an action brought. It merely prescribes the

period for taking one of the many steps that may

occur during the course of litigation, requiring an

alien to “take certain procedural steps at certain spec-

ified times.” Henderson, 131 S. Ct. at 1203.

A motion to reopen resembles other post-

judgment motions that do not initiate a new proceed-

ing and are not subject to “statutes of limitations.”

This Court has compared a motion to reopen to “a

motion for a new trial in a criminal case on the basis

of newly discovered evidence,” INS v. Abudu, 485 U.S.

94, 110 (1988), and a motion for reconsideration to a

Rule 60(b) motion. Stone v. INS, 514 U.S. 386, 401

(1995). “For purposes of efficiency and fairness, our

legal system is replete with rules requiring that

certain matters be raised at particular times.” Hen-

derson, 131 S. Ct. at 1202. These rules are not all

statutes of limitations and are not all presumptively

subject to equitable tolling.

The distinction between statutes of limitations

and other deadlines has deep roots. In 1931, this

Court addressed whether the deadline to seek a writ

of execution was a statute of limitations. Custer v.

McCutcheon, 283 U.S. 514, 516 (1931). The Court

held that the principle that statutes of limitations do

not apply to the sovereign did not apply to the dead-

line for seeking a writ of execution because “[t]he

time limited for issuing executions is, strictly speak-

ing, not a statute of limitations.” Jd. at 519. “On the

contrary, the privilege of issuing an execution is

merely to be exercised within a specified time, as are

other procedural steps in the course of a litigation

after it is instituted.” Ibid.

Similarly, in United States v. Western Pacific

Railroad Co., 352 U.S. 59 (1956), this Court held that

a statute of limitations did not bar the defense of the

doctrine of primary jurisdiction. Jd. at 74. The pur-

pose of statutes of limitations is “to keep stale litiga-

tion out of the courts.” Jd. at 72. It had no further

application because “the action was already in court

and held to have been brought in time.” Jbid. Statutes

of limitations “are aimed at lawsuits, not at the

consideration of particular issues in lawsuits.” Jbid.

This is not the only circumstance in which stat-

utes of limitations are treated differently than other

rules of court procedure. “For purposes of Erie R. Co.

v. Tompkins, for example, statutes of limitations are

treated as substantive.” Jinks v. Richland County,

538 U.S. 456, 465 (2003) (internal citation omitted).

Filing a motion to reopen is merely a procedural

step in the course of litigation that has already been

instituted. The presumption applicable to statutes of

limitation does not establish that Congress intended

the deadline in Section 1229a(c7)(C\i) to be subject

to an implied exception for equitable tolling.

In addition, as the government notes, the admin-

istrative context provides another reason that the

presumption of equitable tolling should not apply. See

U.S. Br. 37; Sebelius v. Auburn Reg’l Med. Ctr., 133

S. Ct. 817, 827 (2013) (noting that the Court has

“never applied the Jrwin presumption to an agency’s

internal appeal deadline”); Vermont Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519, 525 (1978)

(describing background law as “cautioning reviewing

courts against engrafting their own notions of proper

procedures upon agencies”).

C. Board decisions do not provide a basis

for equitable tolling.

Abandoning the reasoning of the courts of ap-

peals, the government argues that equitable tolling

should be available because of deference to the Board.

U.S. Br. 37. However, the Board’s decisions do not

provide a basis for concluding that the statutory

deadline is subject to equitable tolling.

1. No deference is proper because the

statute is not ambiguous.

a. Section 1229a(cX7XCXi) unambiguously

establishes a firm deadline for filing a motion to

reopen. When a statute is unambiguous, there is

nothing for an agency to construe. Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842-843 (1984).° A presumption that Congress, in

writing an unambiguous procedural statute, still

intended to permit an agency to “design its own

procedural rules,” U.S. Br. 39, in contravention of the

* The language of the regulations essentially mirrors the

language of the statute. Compare 8 U.S.C. 1229a(cK7XC\Xi) (“shall

be filed within 90 days of the date of entry of a final adminis-

trative order”) with 8 C.F.R. 1003.2(c)(2) (“must be filed no later

than 90 days after the date on which the final administrative

decision was rendered”). The correct inquiry is thus whether the

agency is entitled to Chevron deference: “(T]he existence of a

parroting regulation does not change the fact that the question

here is not the meaning of the regulation but the meaning of the

statute.” Gonzales v. Oregon, 546 U.S. 243, 257 (2006).

statute would be an unwarranted extension of admin-

istrative deference.

There is no ambiguity in the phrase “shall be

filed within 90 days.” 8 U.S.C. 1229a(cK7KC\i). Nor

does the government assert that the statute is am-

biguous. U.S. Br. 37-39. Under ordinary administra-

tive principles, there is no room for deference.

b. Vermont Yankee does not support the govern-

ment’s argument. The case holds that courts may not

impose additional procedures on agencies beyond those

found in the Administrative Procedure Act. Vermont

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,

544 (1978). This decision does not discuss the ability

of agencies to create exceptions to statutory proce-

dural rules.

To the contrary, Vermont Yankee reaffirms that

courts “must determine whether the agency complied

with the procedures mandated by the relevant stat-

utes.” Id. at 549 n.21 (citing Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 417 (1971)). It

creates no presumption that agencies may create ex-

ceptions to unambiguous statutory mandates.

The regulatory extension of a deadline in Sebelius

v. Auburn Regional Medical Center, 133 S. Ct. 817

(2013), does not establish the Board’s ability to ex-

tend Section 1229a(c\(7)(CXi). In Auburn Regional,

this Court held that a non-jurisdictional time pre-

scription “d[id] not bar the modest extension con-

tained in the Secretary’s regulation.” Jd. at 826. The

decision rejected an argument that the deadline was

jurisdictional. Jd. at 824-825. See id. at 823 n.4 (noting

the appointment of an amicus to argue that “the

statutory 180-day time limit is jurisdictional”). The

opinion does not discuss ambiguity.

There are three distinctions between this statute

and the statute at issue in Auburn Regional. First, in

this statute, Congress included express statutory ex-

ceptions, indicating that Congress considered when

exceptions should be made to the deadline. Compare

8 U.S.C. 1229a(CX7)(c)i) (“Except as provided in this

subparagraph * ** ”) with Auburn Regl Med. Ctr.

133 S. Ct. at 827 (noting a “180-day deadline, with no

statutory exceptions”).

Second, there is no longstanding administrative

interpretation of this statute. See pp. 27-32, infra

(arguing that the Board has not interpreted the

statute). In contrast, in Auburn Regional, Congress

had amended the statute six times without express-

ing disapproval of the regulations permitting exten-

sion of the statutory deadline. Auburn Reg’l Med. Ctr.,

133 S. Ct. at 827-828.

Third, the history of this statute negates any sug-

gestion that Congress meant to leave this deadline in

the hands of the agency. In 1990, Congress directed

the Attorney General to place regulatory limits on

motions to reopen. But in 1996, Congress superseded

these regulatory time and number limits with statu-

tory ones, “transform[ing] the motion to reopen from

a regulatory procedure to a statutory form of relief.”

Dada v. Mukasey, 554 U.S. 1, 14 (2008). Far from em-

bracing the idea that the Board “should be free to

fashion [its] own rules of procedure,” U.S. Br. 38

(quoting Vermont Yankee, 435 U.S. at 544), Congress

chose to impose limits by statute.

c. Nor does the Board’s “retained authority and

broad discretion to reopen proceedings on its own

motion,” U.S. Br. 40, indicate similar authority to toll

the statutory deadline imposed by Congress. Else-

where in its brief, the government correctly empha-

sizes that statutory motions to reopen and the Board’s

sua sponte authority are “logically and doctrinally

distinct.” U.S. Br. 31.

Amicus agrees with the government that the

Board may “exercis[e}] discretion to apply equitable

tolling principles to, and to consider the merits of, an

otherwise untimely motion to reopen filed by an

alien.” U.S. Br. 40. But the Board may do so only

through the exercise of its sua sponte authority, not

by extending the statutory deadline set by Congress.

See pp. 35-40, infra.

2. The Board has not interpreted the

statute to permit equitable tolling.

Even if the government were correct that the

Board could interpret the statute to include equitable

tolling, the Board has not done so. Deference is there-

fore not warranted.

a. No precedential Board decision interprets

this statute to allow for equitable tolling. The gov-

ernment relies only on non-precedential decisions.

See U.S. Br. 24.

As an initial matter, these non-precedential deci-

sions do not receive Chevron deference because they

do not “bind more than the parties to the ruling.”

United States v. Mead Corp., 533 U.S. 218, 232

(2001). Lower courts have refused to give deference to

these decisions. See, e.g., Mahn v. Attorney Gen., 767

F.3d 170, 173 (3d Cir. 2014); Marmolejo-Campos v.

Holder, 558 F.3d 903, 909 (9th Cir. 2009).

Moreover, the Board has not applied equitable

tolling based on its own interpretation of the statute

or regulation; it has merely followed circuit prece-

dent. “With rare exceptions, the [Board] follows the

law of the circuit in which an individual case arises.”

Jama v. ICE, 543 U.S. 335, 350 n.10 (2005). See also

Matter of Anselmo, 20 I. & N. Dec. 25, 31 (B.L.A. 1989)

(“[WJe have historically followed a court’s precedent

in cases arising in that circuit.”); Matter of K-S-, 20 1.

& N. Dec. 715, 718 (B.1.A. 1993) (“[Wle have held that

published case law from a United States court of ap-

peals must be followed within the same circuit, except

in unusual circumstances[.]”).

Research has identified no Board decision dis-

cussing equitable tolling that interprets the statutory

text or the regulations. The decisions cited by the gov-

ernment are not the product of reasoned interpreta-

tion of an agency applying its specialized expertise;

they are the product of an agency faithfully deferring

to circuit authority.

When the Board considers equitable tolling, it

frequently explains, expressly, that it is following

governing circuit authority: “The United States Court

of Appeals for the Sixth Circuit, the jurisdiction

wherein this case arises, has held that equitable

tolling can apply to the time limits on motions to

reopen based on ineffective assistance of counsel.”

In re Khurram Jehangir Khan, No. A78442144, 2007

WL 2074553, at *1 (B.LA. June 15, 2007) (non-

precedential).°

Similarly, Board decisions within the Fifth Cir-

cuit ordinarily note that governing circuit authority

rejects equitable tolling: “The Immigration Judge

correctly determined that the Fifth Circuit has not

adopted the doctrine of equitable tolling in this con-

text.” In re Sergio Ibarra-Amaya, No. A041776122,

* See, e.g., In re Julio Alexander Guzman-Vasquez. No. A044

002033, 2014 WL 1118477, at *1 (B.LA. Feb. 18, 2014) (non-

precedential) (“In cases arising within the jurisdiction of the

United States Court of Appeals for the Ninth Circuit, the 90-day

filing deadline for motions to reopen is subject to equitable

tolling{.!”); In re Uriah Small, No. A076565011, 2013 WL

4041234, at *2 (B.1.A. July 30, 2013) (non-precedential) (“The

United States Court of Appeals for the Second Circuit has de-

termined that the deadline for motions to reopen deporta-

tion proceedings may be equitably tolled to accommodate claims

of ineffective assistance of counsel.”); Jn re Segundo Antonio

Rodriguez Rodriguez, No. A37922683, 2007 WL 2074548, at *1

(B.1L.A. June 15, 2007) (non-precedential) (“The United States

Court of Appeals for the Third Circuit, the jurisdiction wherein

this case arises, has held that aliens raising an ineffective as-

sistance claim in a motion can have the time limits on motions

equitably tolled.”).

2013 WL 2608334, at *3 (B.I.A. May 28, 2013) (non-

precedential).’

The decision quoted by the government for the

proposition that the Board “generally accepts” equi-

table tolling is an outlier, in conflict with the decisions

cited in the footnotes above. See U.S. Br. 24 (quoting

In re Diaz, No. A074081757, 2009 WL 2981747, at *2

(B.1.A. Aug. 21, 2009) (non-precedential)). Signifi-

cantly, the authority relied upon by Diaz says nothing

about tolling; the word “toll” is not even found in the

decision. See Matter of Compean, 25 1. & N. Dec. 1

(U.S. Atty. Gen. 2009).

When the Board chooses to reject circuit authority

in favor of its own interpretation, it is unmistakable.

For example, “We disagree with the reasoning of the

" See also Jn re Armando Moreno, No. A023555408, 2014

WL 3795516, at *2 (B.I.A. June 17, 2014) (non-precedential)

(“But under the binding precedent of the United States Court of

Appeals for the Fifth Circuit, the jurisdiction in which this case

arises, an argument for equitable tolling of the time limitation

on motions to reopen is construed as a challenge to our refusal to

reopen the proceedings at any time pursuant to our regulatory

sua sponte authority under 8 C.F.R. § 1003.2(a). To the extent

that the respondent seeks to have us apply equitable tolling

cases from outside of the Fifth Circuit, we decline to do so.” (in-

ternal citation omitted)); In re Marbel Balmore Moreno, No.

A097310769, 2012 WL 3911861, at *1 (B.1.A. Aug. 28, 2012)

(non-precedential) (following Ramos-Bonilia, construing a mo-

tion for equitable tolling as a motion to reopen sua sponte; and

denying sua sponte reopening); In re Fernando Manuel Herrera

De Avila, No. A096095631, 2011 WL 7071006, at *1 (B.LA. Dec.

27, 2011) (non-precedential) (“A request for equitable tolling in

this context is in essence a request for sua sponte reopening.”).

[9th Circuit] majority in Cuevas-Gaspar v. Gonzales,

supra, and concur instead with the dissenting opinion

in that case.” Jn re Escobar, 24 1. & N. Dec. 231, 233

(B.1.A. 2007). Such a decision — which “expressed the

BIA’s view, based on its experience implementing the

INA, that statutory text, administrative practice, and

regulatory policy” lead to the same result — received

Chevron deference. Holder v. Martinez Gutierrez, 132

S. Ct. 2011, 2021 (2012).

With respect to equitable tolling, however, be-

cause the Board has not engaged in “construction of a

statutory scheme,” no Chevron deference is due its

decisions. Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 844 (1984). It has not

promulgated an interpretation in the exercise of its

authority to make rules carrying the force of law. See

United States v. Mead Corp., 533 U.S. 218, 226-227

(2001). Cases applying equitable tolling do not reflect

the Board’s judgment at all, much less its “fair and

considered judgment.” Perez v. Mortgage Bankers

Ass’n, 135 S.Ct. 1199, 1208 n.4 (2015) (quoting

Christopher v. SmithKline Beecham Corp., 132 8S. Ct.

2156, 2166 (2012)).

b. The document that reflects the Board’s

position regarding the availability of equitable tolling

is the response to comments in promulgating the

regulatory deadline. Some comments suggested that

the agency adopt a “good cause” exception to the

number and time limits for motions to reopen. The

agency expressly rejected that suggestion:

The Department does not agree with the

commenters’ suggestions that a “good cause

exception” would be an appropriate proce-

dural mechanism for addressing exceptional

cases that fall beyond this rule’s time and

number limitations. Instead, section 3.2(a) of

the rule provides a mechanism that allows

the Board to reopen or reconsider sua sponte

and provides a procedural vehicle for the

consideration of cases with exceptional cir-

cumstances.

61 Fed. Reg. 18,900, 18,901-18,902 (April 29, 1996).

Although an agency may change its interpreta-

tion, “the requirement that an agency provide rea-

soned explanation for its action would ordinarily

demand that it display awareness that it is changing

position.” FCC v. Fox Television Stations, Inc., 556

U.S. 502, 515 (2009). “An agency may not, for exam-

ple, depart from a prior policy sub silentio or simply

disregard rules that are still on the books.” Ibid. The

Board has never acknowledged nor displayed any

awareness that it was changing from this interpreta-

tion.

Even if the government were correct that the

Board could interpret this deadline as subject to

equitable tolling, it has not done so. Deference to the

Board is no reason to conclude that this statute is

subject to equitable tolling.

D. In establishing a firm deadline, Con-

gress struck a balance between accu-

racy and finality.

This Court has rejected policy considerations as

a basis for interpreting a deadline as subject to equi-

table tolling: “We do not apply equitable tolling as a

matter of some independent authority to reconsider

the fairness of legislative judgments balancing the

needs for relief and repose. To the contrary, we may

apply equitable tolling * * * only if we determine that

the *** drafters so intended.” Lozano v. Montoya

Alvarez, 134 S. Ct. 1224, 1236 (2014). That should be

the end of the matter.

By their nature, deadlines may produce unfair

outcomes. Deadlines “necessarily operate harshly and

arbitrarily with respect to individuals who fall just on

the other side of them.” United States v. Locke, 471

U.S. 84, 101 (1985).

But “[rjules of procedure are a necessary part of

an orderly system of justice.” Houston v. Lack, 487

U.S. 266, 283 (1988) (Scalia, J., dissenting) (quoting

Thompson v. INS, 375 U.S. 384, 390 (1964) (Clark, J..

dissenting)). “Deadlines may lead to unwelcome re-

sults, but they prompt parties to act and they produce

finality.” Taylor v. Freeland & Kronz, 503 U.S. 638,

644 (1992). A legal system must, at some point in

time, demand finality in judgments and administra-

tive decisions.

The interest in finality is confirmed by the treat-

ment of post-judgment motions in ordinary civil and

criminal litigation. When the statutory deadline was

enacted in 1996, the rules of civil and criminal proce-

dure forbade courts to extend the deadlines for post-

judgment motions. Although courts could generally

enlarge deadlines, the rules provided that a court

“may not extend the time for taking any action under

Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b),

and 74(a).” Fed. R. Civ. P. 6&(b) (1994 ed.). See also

Fed. R. Crim. P. 45(b) (1994 ed.) (“may not extend the

time for taking any action under Rules 29, 33, 34 and

35”). Rule 45(b) made an “insistent demand for a

definite end to proceedings.” Eberhart v. United

States, 546 U.S. 12, 19 (2005) (per curiam).

The same is true here. By restricting an alien to

filing a motion to reopen within 90 days, Congress

demanded a definite end to immigration proceedings.

In setting this deadline, like other deadlines, Con-

gress struck a balance between relief and repose. The

fairness of this legislative judgment should not be

reconsidered by this Court. The inflexible 90-day

deadline is not subject to equitable tolling.”

* Holding that the 90-day deadline is not subject to equita-

ble tolling does not foreclose application of rules of forfeiture

or waiver. See Scott Dodson, Mandatory Rules, 61 Stan. L. Rev.

1, 4 (2008). Indeed, the regulations expressly permit DHS to

waive the deadline by joining in a motion to reopen. 8 C.F_R

1003.2( cK 3 XMiii).

Il. BECAUSE EQUITABLE TOLLING IS UN-

AVAILABLE, AN ARGUMENT FOR EQUITA-

BLE TOLLING IS PROPERLY CONSTRUED

AS AN ARGUMENT THAT THE BOARD

SHOULD HAVE REOPENED SUA SPONTE.

After the expiration of the statutory deadline, a

statutory motion to reopen cannot succeed. A time-

barred motion to reopen can provide relief only as an

invitation for the Board to reopen sua sponte. Ar-

guments seeking equitable tolling of the statutory

deadline should be interpreted as arguments that the

Board should have applied principles of equitable

tolling in reopening on its own motion. At a mini-

mum, it was not error for the Fifth Circuit to inter-

pret the petition in this manner.

A. When a party seeks relief through a proce-

dure in which the relief sought is categorically un-

available, courts properly treat the request as invoking

a different procedure through which the relief may be

available. For example, an untimely Rule 59 motion

may be treated as a request for relief under Rule 60.

12 J. Moore, Moore’s Federal Practice, 7 59.11[4][a]

(3d ed. 2012). Construal is common practice in habeas

proceedings. Porter v. Adams, 244 F.3d 1006, 1007

(9th Cir. 2001) (construing a 28 U.S.C. 2241 petition

as seeking relief available only under 28 U.S.C.

2255); United States v. Torres, 282 F.3d 1241, 1244-

1246 (10th Cir. 2002) (concluding that a district court

properly construed a “writ of coram nobis and/or writ

audita querela” as a successive petition under 28

U.S.C. 2255 over which it lacked jurisdiction); Hamm

v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (con-

struing a 28 U.S.C. 2254 action as brought under 28

U.S.C. 2241); United States v. Holt, 417 F.3d 1172,

1175 (llth Cir. 2005) (construing an audita querela

motion as a successive petition under 28 U.S.C.

2255). Even when a party affirmatively disclaims a

particular ground, courts of appeals may construe a

claim in that manner when it “appears to be the only

cognizable basis” for the claim. United States v.

Williams, 185 Fed. Appx. 917, 919 (11th Cir. 2006).

Habeas is not the only context in which courts

recharacterize litigants’ pleadings. For example, com-

plaints against federal officials invoking 42 U.S.C.

1983 are properly treated as Bivens actions. Morelock

v. Ware, 815 F.2d 79 (6th Cir. 1987) (unpublished).

See also Powell v. Fleming, 27 Fed. Appx. 970, 974

(10th Cir. 2001) (considering construing a 28 U.S.C.

2241 petition as a Bivens action); Walber v. HUD, 897

F.2d 530 (6th Cir. 1990) (unpublished) (construing

claims under 42 U.S.C. 1983 and Bivens as alleging

violations of 42 U.S.C. 1981 and 1982). Complete

preemption has a similar effect, treating a wholly

preempted state-law cause of action as arising under

federal law. Beneficial Nat'l Bank v. Anderson, 539

U.S. 1, 8 (2003). Substance, not form, controls.

Motions to reopen administrative proceedings

governed by the APA and Hobbs Act are no exception.

To the contrary, the Court has considered the basis on

which the “petition that was denied sought reopen-

ing” in determining whether a court may exercise

jurisdiction. ICC v. Brotherhood of Locomotive Eng’rs,

482 U.S. 270, 284 (1987).

This principle is particularly applicable when the

document is filed by a pro se party. Haines v. Kerner,

404 U.S. 519, 520 (1972). Although petitioner was

represented by counsel, many who challenge Board

decisions are not. See Administrative Office, Judicial

Business of the United States Courts 2014, Table B-9

(Sept. 30, 2014).

B. Because the statutory deadline for filing a

motion to reopen cannot be equitably tolled, the stat-

utory authority to reopen cannot provide relief after

the expiration of the deadline. But it is undisputed

that the Board still has the power to reopen removal

proceedings, despite the untimeliness of an alien’s

motion, through the exercise of its sua sponte power.

The Fifth Circuit correctly recognized that

(1) petitioner’s only route to relief was through the

Board’s exercise of its sua sponte authority and

(2) petitioner’s challenges to the failure to provide

this relief truly sounded in challenges to the Board’s

refusal to exercise its sua sponte authority.

C. Petitioner did not suffer prejudice from this

interpretation of his arguments. Petitioner would be

no better off if the Fifth Circuit had (as the govern-

ment suggests) denied the petition on its merits. U.S.

Br. 32. Even if petitioner gained nothing by the Fifth

Circuit construing his petition as challenging the

Board’s exercise of its sua sponte authority, he lost

nothing.

Although no meaningful standards currently per-

mit courts to review the Board’s exercise of its sua

sponte authority, this may not always be true in the

future. Current rulemaking may supply such stan-

dards. See Matter of Compean, 25 I. & N. Dec. 1, 2

(U.S. Atty. Gen. 2009) (directing the Executive Office

for Immigration Review to initiate rulemaking proce-

dures regarding motions to reopen and ineffective as-

sistance of counsel “as soon as practicable”).

The result in this particular case does not un-

dermine the general rule of courts of appeals treating

filings, including petitions for review, as seeking relief

in a form in which it may be available. This method of

construal can afford petitioners benefits in other

contexts and has led the Board to employ a similar

interpretation.”

* Board decisions from the Fifth Circuit have generally fol-

lowed Ramos-Bonilla and construed motions seeking equitable

tolling as invitations for the Board to exercise its sua sponte au-

thority. See, e.g., In re Armando Moreno, No. A023555408, 2014

WL 3795516, at *2 (B.I.A. June 17, 2014) (non-precedential)

(“[AJn argument for equitable tolling of the time limitation on

motions to reopen is construed as a challenge to our refusal to

reopen the proceedings at any time pursuant to our regulatory

sua sponte authority.”); id. at *3 (“[T]o the extent the respondent

relies on equitable tolling principles, we are bound by the Court’s

holding in Ramos-Bonilla, supra, to construe the respondent’s

request as one for sua sponte reopening.”); In re Fernando

Manuel Herrera De Avila, No. A096095631, 2011 WL 7071006,

at *1 (B.1.A. Dec. 27, 2011) (non-precedential) (“A request for

equitable tolling in this context is in essence a request for sua

sponte reopening.”).

D. The government’s reliance on SEC v. Chenery

Corp., 318 U.S. 80 (1943), is unavailing. U.S. Br. 29.

Chenery holds that “[t]he grounds upon which an ad-

ministrative order must be judged are those upon

which the record discloses that its action was based.”

318 U.S. at 87. A court may not affirm the validity of

an agency’s order “as a determination of policy or

judgment which the agency alone is authorized to

make and which it has not made.” Jd. at 88.

As an initial matter, Chenery does not apply

because the Fifth Circuit did not “judge” the Board’s

exercise of its sua sponte authority. Instead, the Fifth

Circuit held that it lacked jurisdiction to judge the

exercise of the Board’s sua sponte authority (the only

authority through which petitioner could have re-

ceived relief). Chenery only “pertains to the basis that

a court may use for the affirmance of agency action

that is reviewable” and “has nothing whatever to do

with whether agency action is reviewable.” ICC v.

Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283

(1987) (emphasis in original).

In any event, there is no question that the Board

treated petitioner’s motion as an invitation to reopen

on the Board’s motion and denied “reopening as an

exercise of discretion.” Pet. App. 9. The Fifth Circuit

did not find the Board’s order valid on the basis of a

judgment that the Board did not make.

There is no reason to adopt the government’s

strict rule that analysis must end with a denial of

equitable tolling on the merits. If the deadline for

filing a statutory motion may not be equitably tolled,

there is no error in construing arguments seeking

equitable tolling of untimely motions as arguments

that the Board should have exercised its sua sponte

authority.

Ill. THE COURTS OF APPEALS HAVE NO JU-

RISDICTION OVER THE BOARD’S FAIL-

URE TO EXERCISE ITS SUA SPONTE

AUTHORITY.

Having construed the petition for review as chal-

lenging the Board’s decision not to reopen the pro-

ceeding on its own motion, the Fifth Circuit correctly

held that it lacked jurisdiction. Amicus agrees with

the government that “the sua sponte reopening regu-

lation confers no private rights and no judicially man-

ageable standards exist for reviewing such a decision,

which is committed to agency discretion by law.” U.S.

Br. 35 n.13. See Heckler v. Chaney, 470 U.S. 821, 834

(1985).

Petitioner’s assertion that the Board has sup-

plied judicially manageable standards by binding

itself to apply principles of equitable tolling in exer-

cising its discretion is unavailing.” See Pet. Br. 26

’° Petitioner expressly disclaimed this argument in his peti-

tion for writ of certiorari:

Petitioner’s qualm is not with the second step of the

Fifth Circuit’s logic, that the Board’s sua sponte dis-

cretion is unreviewable, but with the first step, that a

request for equitable tolling is equivalent to a request

(Continued on following page)

(citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996)

(noting that though an agency’s discretion may be

“unfettered at the outset,” it may announce and fol-

low a “general policy by which its exercise of discre-

tion will be governed”)).

Petitioner cites the Board’s Lozada decision as

the source of these standards. Pet. Br. 26 (noting Mat-

ter of Lozada, 19 1. & N. Dec. 637 (B.1.A. 1988)). But

Lozada does not bind the Board to reopen on its own

motion. Rather, the decision establishes procedural

requirements for alleging ineffective assistance. 19 I.

& N. Dec. at 639 (requiring a detailed affidavit,

informing former counsel, including former counsel’s

response, and explaining whether a disciplinary

complaint was filed). A motion to reopen that fails to

comply with Lozada will ordinarily be denied, but

Lozada does not compel the Board to grant reopening

on its own motion every time its requirements are

met.

Moreover, despite Yueh-Shaio Yang, this Court

has never held that an agency’s course of adjudication

transformed an unreviewable decision into a review-

able one. This Court should be hesitant to do so now

because such a ruling would discourage agencies from

explaining their decisions. Transforming an agency's

for sua sponte power. It is only with this latter conten-

tion that Petitioner disagrees([.]

Pet. 6. In the light of this concession, the best approach may be

to affirm the judgment below while reserving the issue of

reviewability of the Board’s sua sponte authority.

explanations into binding standards that courts can

require the agency to follow would create an undesir-

able incentive for agencies not to explain their exer-

cise of discretionary authority.

For this reason, an agency’s mere reference to

legal principles in explaining its refusal to exercise its

discretion does not transform an unreviewable deci-

sion into a reviewable one. See JCC v. Brotherhood of

Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (rejecting

the proposition that “if the agency gives a ‘reviewable’

reason for otherwise unreviewable action, the action

becomes reviewable”).

B. Amicus National Immigrant Justice Center’s

(NIJC) reliance on Kucana v. Holder, 558 U.S. 233

(2010), is misplaced. Kucana involved judicial review

of “the statutory right to file a motion to reopen.”

Dada v. Mukasey, 554 U.S. 1, 14 (2008). It held that

the Board could not, by regulation, make this statuto-

ry right unreviewable. Kucana, 558 U.S. at 250 (“It is

unsurprising that Congress would leave in place

judicial oversight of this important procedural safe-

guard[.]”) (internal quotation marks and alterations

omitted). But there is no statutory right (nor even

authority) for the Board to reopen on its own motion.

This power is wholly a creature of regulatory execu-

tive grace.

NIJC is correct that an agency “may adopt rules

in this context that are legal in nature,” NIJC Br. 9,

but the Board has not, either by rule or by adjudica-

tion, bound itself to exercise its discretion in a specific

manner. Because no standard applies to the Board

reopening on its own motion, the Fifth Circuit cor-

rectly held that it lacked jurisdiction.

CONCLUSION

The judgment of the Fifth Circuit should be

affirmed.

Respectfully submitted,

WILLIAM R. PETERSON

Counsel of Record

CHARLES R. FLORES

Breck REDDEN LLP

1221 McKinney Street

Suite 4500

Houston, TX 77010

(713) 951-6236

wpeterson@beckredden.com

March 30, 2015

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.