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

No. 14-185

IN THE

Supreme Court of the Gnited States

NOEL REYES MATA,

Petitioner,

Vv.

Eric H. HOLDER, JR.,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

On Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITIONER

Charles Roth

Counsel of Record

NATIONAL IMMIGRANT

JUSTICE CENTER

208 South LaSalle Street

Suite 1300

Chicago, IL 60604

312-660-1613

MARCH 5, 2015

i

TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE................... 1

SUMMARY OF THE AMICUS ARGUMENT ........... 1

RIS vtiectsncerenonenmnmiviitiineminmimmadaaal 2

3 EQUITABLE TOLLING

DETERMINATIONS ARE NOT MADE

UNDER THE BOARD’S SUA SPONTE

FF TET 0 enc cctnccscnescssnesmnoninnniinieniniaiialinaa 2

Il. CONGRESS'S JURISDICTIONAL RULES

FOR DISCRETIONARY IMMIGRATION

MATTERS SHOULD GOVERN IN THIS

RFU EET & ccscececesovcnsnaseeuniiictabpeunenenngebaienadanlia 4

A. Immigration-Specific

Jurisdictional Rules Are Detailed

I ccoididinniditiieg ee heetee es 4

B. Sua Sponte Matters Frequently

Raise or Involve legal issues................. 8

1. Longstanding Agency Policy

Permits Sua Sponte Reopening

for Changes in Law. ...........0..cccc.ccceseseees 8

2. Sua Sponte Reopening is

Employed Where Convictions Are

Vacated On Constitutional or

RS Gs cinttncinickddicntniciennsemnenaions 10

3. The Board’s Exercise of its Sua

Sponte Authority May Turn on

Legal Factors Such as the Board’s

View of Its Jurisdiction. ...................... 11

il

TABLE OF CONTENTS

(continued)

C. Even If No Law to Apply

Principles Were a Bar to Judicial

Review Here, They Would Not

Bar Questions of Law or

Constitutional Questions, as the

Majority of Circuits Agree. ................. 12

Ill. THE TRADITION OF JUDICIAL REVIEW

OVER MOTIONS TO REOPEN IS

LONGSTANDING AND IMPORTANT. ....... 16

A. The History of the Board’s

Reopening Rules and Ongoing

eer 16

B. Review of Reopening Matters is

EE re 17

aii a cikccemaniettnseanensentonsnnensscere 18

ill

TABLE OF AUTHORITIES

Cases

Anaya Aguilar v. Holder, 683 F.3d 369

I ai ea ileal arta ait neil 7, se

Bailey v. Glover, 88 U.S. 342, 21 Wall. 342

Es renee Seren S Oe nh ae ee Ee 3

Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008) ...... 14

Bernal- Vallejo v. INS, 195 F.3d 56

Ey GEL, WINE inidneténstrateisesqndebiintidiemsininiiieiaiiets 12, 14

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102

I i a 13

Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008)......... 12

Citizens to Preserve Overton Park, Inc. v. Volpe,

al 6

Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010)........ 12

Cohens v. Virginia, 6 Wheat. 264, 404,

RE EE x eR TE eR 6

Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) ...................0.0... 6

Cruz v. Att’y Gen. of U.S., 452 F.3d 240

a il 10, 12

Dada v. Mukasey, 554 U.S. 1 (2008)......................... 16

Davis Enters. v. EPA, 877 F.2d 1181

RATERS SE Se SEE ene ore Oe 15

Delgadillo v. Carmichael, 332 U.S. 388 (1947) .......... 9

Diebold v. United States, 947 F.2d 787

O88 OE MRS SR ROR Cy oO 15

1V

TABLE OF AUTHORITIES

(continued)

Page(s)

EC Term of Years Trust v. United States,

I all 5

Electricities of N.C., Inc. v. Southeastern Power

Admin., 774 F.2d 1262 (4th Cir. 1985) ................. 15

Exploraticn Co v. United States,

ETE aa eer cen 3

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ............ 17

Fong Yue Ting v. United States,

I 17

Freire v. Holder, 647 F.3d 67 (2d Cir. 2011)............. 12

Gor v. Holder, 607 F.3d 180 (6th Cir. 2010)... 7, 13, 14

Gutierrez de Martinez v. Lamagno,

Sy Tes MRT SIT ncrsccrienrirninciiinaseictedeitepiaiilindicendsieiiideibadaineall 8

Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004)...... 14

Hinck v. United States, 550 U.S. 501 (2007) .............. 5

ICC v. Locomotive Engineers, 482 U.S. 270

SIIIIIITittesnmecandpiemsiememeuennnssbeninpetienamnnnngntenindidiindin 10

INS v. Abudu, 485 U.S. 94 (1988)...................0..-...... 18

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).......... 14

INS v. Doherty, 502 U.S. 314 (1992)......................... 18

INS v. Jong Ha Wang, 450 U.S. 139 (1981)

uD IIIT nn scscavenrennensetinemueengseiitbinidesimmidinseniensents 18

INS v. Rios-Pineda, 471 U.S. 444 (1985).................. 18

INS v. St. Cyr, 533 U.S. 289 (2001) .......... 8, 14, 15, 16

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Jones v. Conoway, 4 Yeates 109 (Pa. 1804)................ 3

Kalilu v. Mukasey, 516 F.3d 777 (9th Cir. 2008)...... 12

Kucana v. Holder, 558 U.S. 233 (2010)............. 6, 7, 12

Lenis v. U.S. Att'y Gen., 525 F.3d 1291

REST 8 ea ee 13

Luis v. INS, 196 F.3d 36 (1st Cir. 1999)................... 13

Marcello v. Bonds, 349 U. S. 302 (1955)............0........ 4

Matter of Adamiak, 23 I. & N. Dec 878 (2006)......... 11

Matter of B-, 11. & N. Dec. 47 (BIA 1941)................ 17

Matter of Bowe, 17 I. & N. Dec. 488 (BIA 1981)......... e)

Matter of Chavez-Martinez, 241. & N.

I icine 11

Matter of Farinas, 12 I. & N. Dec. 467

ESE ARETE "EASY SES aero Raa 8,9

Matter of Hashmi, 241. & N. Dec. 785

EE ee ae een S EE 11

Matter of Malone, 11 I. & N. Dec. 730

a )

Matter of Rodriguez-Ruiz, 22 1. & N. Dec.

aa eseeiameniasedennonne 11

Matter of Roldan, 22 |. & N. Dec. 512 (BIA 1999) ... 10

Matter of T-, 1 1. & N. Dec. 158 (BIA 1941).............. 17

Matter of W-, 11. & N. Dec. 154 (BIA 1941)............. 17

vl

TABLE OF AUTHORITIES

(continued)

Page(s)

Matter of Yauri, 25 1. & N. Dec. 103

EET ae 11, 12

McNary v. Haitian Refugee Center, Inc.,

I al nlll 8

Montana Air Chapter No. 29, Ass'n of Civilian

Technicians v. Fed. Labor Relations Auth.,

898 F.2d 753 (Sth Cir. 1900)....................0.cececccsee 15

Morales v. Trans World Airlines, Inc..,

CE ee ee meas 5

Mosere v. Mukasey, 552 F.3d 397 (4th Cir. 2009) .... 14

Nawaz v. Holder, 314 F. App'x 736

EP Ee SAAS ee a 13

Negusie v. Holder, 555 U.S. 511 (2009) .................... 11

Ng Fung Ho v. White, 259 U.S. 276 (1922)............... 17

Ni v. BIA, 520 F.3d 125 (2d Cir. 2008) ..................... 12

Pickering v. Gonzales, 465 F.3d 263

ee ee ee 11

Potdar v. Mukasey, 550 F.3d 594 (7th Cir. 2008)..... 12

RedLAX Bank Hotel, LLC v.

Amalgamated Bank, 132 S. Ct. 2065 (2012)....... 5, 6

Reno v. Catholic Social Services, Inc.,

ER Se eee 8

Reyes-Torres v. Holder, 645 F.3d 1073

EEE eR een eee a Oe 11

Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010).......... 13

vl

TABLE OF AUTHORITIES

(continued)

Scheerer v. U.S. Att’y General, 513 F.3d 1244

I asensenel 11, 12

Sherwood v. Sutton, 21 F. Cas. 1303

(C.C.D.N.H. 1828) (No. 12,782)

SE: ihe: Sn IIIT titetincinintiinadntemnentdnbassubendetisinetianenes 3

Singh v. Holder, 771 F.3d 647 (9th Cir. 2014) ......... 12

Stone v. INS, 514 U.S. 386 (1995)...........0000.000.0.0.. 4,17

Tamenut v. Mukasey, 521 F.3d 1000

(8th Cir. 2008) (em banc) ..................c.cccccccccccecceseees 13

U.S. ex rel. Lee Kum Hoy v. Shaughnessy,

£ > | 2 ERE 18

UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) .......... 14

United States ex rel. Accardi v. Shaughnessy,

I etal 17, 18

United States ex rel. Lee Kum Hoy v. Murff,

STIS RR ee ae en ne ROLE ne aT 17

United States v. Grubbs, 547 U.S. 90 (2006) .............. 9

United States v. Shaughnessy, 221 F.2d 578

I aniline eneneeiner caidas 17

Varity Corp. v. Howe, 516 U.S. 489 (1996). ................ 5

Woodsmall v. Lyng, 816 F.2d 1241 (8th Cir. 1987)..15

Zadvydas v. Davis, 533 U.S. 679 (2001)............. 14, 15

Statutes

Be Ue I niccntinntincenndndaniescinauedadiin 4,5, 7,12

a aa 2

Vil

TABLE OF AUTHORITIES

(continued)

Page(s)

I ial leit 9, 10

I a 17, 18

SEES RRs eee a eee SCRE R Nee 4

Be ne Oe SI inc cciccsnciccednsnsesonsnsenenenss 4,5, 15

yy Oe I scesnendamebenennenunenis 5

BD UE BLE, B BEE cccccccccevccccscesococccscsscccecsses 5, 6

De Be ccc cccccccccessoccccsccscesese 4,5, 15, 16

Other Authorities

Black’s Law Dictionary 1334 (5th ed. 1976)............... 3

Henry Hart, The Power of Congress to Limit the

Jurisdiction of Federal Courts: An Exercise in

Dialectic, 66 Harv. L. Rev. 1362 (1953) ................ 15

Regulations

26 FED.REG. 12110 (Jan. 22, 1962)........................... 17

I a isiiallniidadiians 1, 17

all i aeidsnladiinl 17

I ee EID ccc ccccccncevccnsccoscecscsosvovessesonoes 11

INTEREST OF THE AMICUS CURIAE

Amicus National Immigrant Justice Center (NIJC)

is a non-profit agency that represents immigrants

and asylum-seekers. NIJC collaborates with more

than 1500 pro bono attorneys to represent thousands

of immigrants and asylum-seekers annually. NIJC

has represented numerous individuals seeking equi-

table tolling in order to seek reopening of their cases,

many due to ineffective assistance of counsel. NIJC

has also represented individuals seeking reopening

under the residual reopening authority of 8 C.F.R. §

1003.2(a).!

SUMMARY OF THE AMICUS ARGUMENT

The Court should decide in favor of the petitioner

in this case by holding that equitable tolling determi-

nations are not made under the Board's residual or

sua sponte reopening authority. Equitable tolling

functions by altering when a particular limitations

period begins and ends. As both parties note, the

Fifth Circuit misapprehended the nature of equitable

tolling in this context, and its finding that it lacked

jurisdiction was based on that misanalysis. The

Court need go no further to resolve this case.

We write in order to address a related matter ad-

verted to in the government’s brief. The unpublished

decision below held, and the government’s brief now

argues, that jurisdiction is precluded, as a blanket

matter, over the BIA’s refusal to exercise its residual

1 Pursuant to Rule 37.6 of the rules of this Court, amicus affirms

that no counsel for a party authorized this brief in whole or in

part and that no person other than amicus and their counsel

made a monetary contribution to its preparation or submission.

The parties’ letters of consent to this filing have been submitted

to the Clerk.

2

regulatory authority to reopen a case sua sponte,”

because “no judicially manageable standards exist for

reviewing such a decision.” U.S. Br. 35 n.13 (citing 5

U.S.C. § 701(a)(2)). We respectfully submit that the

matter is not so straightforward. First, the Court has

never held, and should not now hold, that the de-

tailed jurisdictional scheme in the immigration stat-

utes is displaced by the general jurisdictional rules of

the Administrative Procedures Act. Second, the BIA

does address legal and constitutional claims in the

context of a sua sponte reopening decision. Even if

background “no law to apply” principles may bar ju-

risdiction in the removal context, such claims (and

potentially others that may be raised in that context)

plainly present manageable legal principles. Accord-

ingly, the Court should decline to prejudge a broad

issue that it wisely left open in Kucana, the resolu-

tion of which is not required by this case. See Kucana

v. Holder, 558 U.S. 233, 252 (2010).

ARGUMENT

I. EQUITABLE TOLLING DETERMINA-

TIONS ARE NOT MADE UNDER THE

BOARD’S SUA SPONTE AUTHORITY.

The primary issue in this case is whether the Fifth

Circuit erred in ruling, contrary to ten circuits, that

equitable tolling determinations should be “con-

strued” as arising under the Board’s sua sponte au-

thority. As the Petitioner and Respondent argue, the

2 Courts frequently refer to this authority as “sua sponte” reo-

pening authority or authority to reopen on the Board's own mo-

tion. This is something of a misnomer, since sua sponte reopen-

ing is generally invoked at the request of a party. However, for

sake of clarity, this brief discusses that authority employing the

terminology generally used by courts of appeals.

3

Court should reject the Fifth Circuit’s analysis and

follow the logic of the other ten circuits that have

held equitable tolling determinations to be outside

the Board’s sua sponte authority. Pet’r’s Br. 14; U.S.

Br. at 28.

Equitable tolling is a general legal concept that has

been employed in this country since at least 1804. See

Jones v. Conoway, 4 Yeates 109 (Pa. 1804) (applying

the doctrine of equitable tolling in a slavery case);

Sherwood v. Sutton, 21 F. Cas. 1303 (C.C.D.N.H.

1828) (No. 12,782) (Story, J., in circuit).

By nature and definition, tolling acts “to suspend

or stop temporarily,” Black’s Law Dictionary 1334

(5th ed. 1976). Thus, under traditional tolling princi-

ples, the “statutes of limitations ... shall not begin to

run until” the end of the circumstance causing the

tolling. Exploration Co v. United States, 247 U.S. 435,

449 (1918); Bailey v. Glover, 88 U.S. 342, 21 Wall.

342, 348 (1875); ([T]he bar of the statute does not

begin to run until the fraud is discovered.”). Tolling

is not an exception to a statutory deadline; rather, it

governs the “clock” applicable to such a deadline. It is

logical to say that the 90 day reopening deadline can

be tolled; whereas there is no deadline for the Board’s

residual reopening authority, and it makes no sense

to say that one can toll a nonexistent deadline.

The Court need go no further to resolve this case.

4

II. CONGRESS’ DETAILED JURISDICTION-

AL RULES FOR LEGAL AND DISCRE-

TIONARY IMMIGRATION MATTERS

SHOULD GOVERN IN THIS CONTEXT.

The immigration statute includes a detailed elabo-

ration of federal court jurisdiction over removal or-

ders. In this context, background administrative law

principles are supplanted by more specific jurisdic-

tional rules. For this reason, the Court should hesi-

tate to import general jurisdictional limitations into

the removal order context.

A. Immigration-Specific Jurisdictional

Rules Are Detailed and On Point.

The Solicitor General submits that “review of final

orders of removal is governed by the background

principles” of the Administrative Procedures Act, in-

cluding 5 U.S.C. § 701(a)(2). U.S. Br. at 16. But it is

not at all apparent that a separate jurisdictional

analysis should be required under § 701(a)(2), where

Congress has enacted specific jurisdictional rules

governing discretionary matters in the immigration

context. In another context, the Court has found that

where Congress has adopted “exception[s) to the gen-

eral applicability of the Hobbs Act procedures ... it

must be construed as creating a procedure different

from normal practice under the Act.” Stone v. INS,

514 U.S. 386, 397 (1995); see also Marcello v. Bonds,

349 U.S. 302, 310 (1955).

The INA not only includes a specific, detailed stat-

utory scheme governing immigration appeals gener-

ally, see 8 U.S.C. § 1252, but Congress enacted specif-

ic statutory rules governing judicial review of discre-

tionary matters. 8 U.S.C. §§ 1252(a)(2)(B); (a)(2)(D).

Under the INA, courts first ask whether the matter

5

at issue is a discretionary matter related to one of

five enumerated discretionary matters. 8 U.S.C. §

1252(a)(2)(B)(i). If not, courts ask whether it relates

to a matter “specified under this subchapter to be in

the discretion of the Attorney General,” other than

asylum. ld. § 1252(a)(2)(B)Gi). If either §

1252(a)(2)(B)(i) or (ii) is implicated, federal court ju-

risdiction is not plenary; but even then, Congress

permits review over legal and constitutional ques-

tions. Id. § 1252(a)(2)(D).

These provisions are part of “a precisely drawn, de-

tailed statute” governing jurisdiction over discretion-

ary matters, which “pre-empts more general” rules.

Hinck v. United States, 550 U.S. 501, 506 (2007)

(quoting EC Term of Years Trust v. United States,

550 U.S. 429, 434 (2007) Gnternal quotation marks

omitted).

In light of the detailed and specific jurisdictional

scheme in the INA, it is at best doubtful that the

general provisions of § 701(a)(2) govern; “it is a com-

monplace of statutory construction that the specific

governs the general.” Morales v. Trans World Air-

lines, Inc., 504 U.S. 374, 384 (1992). That canon of

construction is “particularly true where... ‘Congress

has enacted a comprehensive scheme and has delib-

erately targeted specific problems with specific solu-

tions.” RedLAX Bank Hotel, LLC v. Amalgamated

Bank, 132 S. Ct. 2065, 2071 (2012) (quoting Varity

Corp. v. Howe, 516 U.S. 489, 519 (1996) (Thomas, J.,

dissenting).

Sections 1252(a)(2)(B) and (D) are specifically ap-

plicable to discretionary agency decisions in the re-

moval context. They are part of “a comprehensive

scheme” which “deliberately target[s] specific prob-

6

lems with specific solutions.” RedLAX, 132 S. Ct. at

2071. These specific rules should govern over more

general principles.

The Court addressed § 1252(a)(2)(B)(ii) in Kucana

v. Holder, 558 U.S. 233 (2010). Therein, the Court

held that § 1252(a)(2)(B)(ii) only precludes review

over those matters specified as discretionary by stat-

ute. Under Kucana, where Congress’s carefully cali-

brated judicial review scheme prohibits judicial re-

view, no judicial review is available. Where Congress

has not prohibited review, it continues to be availa-

ble. It is black letter law that where jurisdiction is

granted by Congress, and the requirements of Article

III standing are met, courts have a “virtually unflag-

ging obligation” to adjudicate the matters that come

before them. Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 817 (1976); see

also Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed.

257 (1821) (‘We have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.”).

Moreover, the approach advocated by the Govern-

ment would be inconsistent with Kucana to some ex-

tent. The Solicitor General argues that courts lack

jurisdiction over residual reopening decisions, be-

cause Board case law does not provide a sufficiently

clear framework to permit federal judicial review.

U.S. Br. 35, n.13 (citing Kucana, 558 U.S. at 251,

n.18).

However, it is clear, as the Government does not

contest, that judicially manageable standards may be

found in formal and informal policy statements and

regulations as well as in statutes. See Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

7

(1971). Thus, under the Government’s approach, the

Board would be able to create or contract federal

court jurisdiction over residual reopening matters by

increasing or decreasing the clarity of its precedent. *

Thus, under the approach advocated by the Solici-

tor General, “the Executive would have a free hand to

shelter its own decisions from abuse-of-discretion ap-

pellate court review.” Kucana, 558 U.S. at 252. Ku-

cana rejected the suggestion that agencies should be

able by regulation or case law to alter federal court

jurisdiction as “an extraordinary delegation of au-

thority.” Id. Yet under the government's reasoning,

that which the INA does not permit may be accom-

plished under § 701(a)(2).

The potential inconsistency does not stop there. To

the extent that § 701(a)(2) principles were found ap-

plicable to discretionary immigration matters, and a

particular discretionary matter were found to qualify,

courts would then need to undertake a second, sepa-

rate analysis to decide whether jurisdiction over non-

discretionary matters is permitted in that context.

The answer to that question may be disputed. Cf.

Anaya Aguilar v. Holder, 683 F.3d 369, 372 (7th Cir.

2012) (finding jurisdiction over sua sponte matters

precluded except for statutory and constitutional

questions) with Gor v. Holder, 607 F.3d 180, 193 (6th

Cir. 2010) (finding jurisdiction over sua sponte mat-

ters precluded even for statutory and constitutional

questions).

3 Amicus sees no limiting principle which would prevent the

Board from similarly insulating other discretionary matters

from abuse-of-discretion review, simply by refusing to issue any

rules elaborating on that authority.

8

Particularly in light of the general presumption

“favoring interpretations of statutes [to] allow judi-

cial review of administrative action,” Reno v. Catholic

Social Services, Inc., 509 U.S. 43, 63-64 (1993) (quot-

ing McNary v. Haitian Refugee Center, Inc., 498 U.S.

479, 496 (1991)), the Court should be leery of the So-

licitor General's argument. Jurisdiction-stripping

statutes should be read narrowly, not broadly. See

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995); INS v. St. Cyr, 533 U.S. 289, 298 (2001).

B. Sua Sponte Matters Frequently Raise

or Involve legal issues.

Even if it were accepted that there is no law to ap-

ply to the discretionary aspects of sua sponte deci-

sions, many sua sponte decisions involve legal and

constitutional issues. These can include changes in

law, vacatur of convictions, agency error in the reo-

pening analysis, and other legal and constitutional

questions.

1. Longstanding Agency Policy

Permits Sua Sponte Reopen-

ing for Changes in Law.

The Board has a longstanding rule that even where

an order was proper at the time it was entered, a

noncitizen should not be removed on the basis of an

order whose legal foundations have been undermined

by intervening law. See Matter of Farinas, 12 1. & N.

Dec. 467, 472 (BIA 1967).

For instance, in Farinas, a noncitizen was ordered

deported in 1946 on the ground that he had effectu-

ated an entry to the United States when he trans-

ferred ships at a Canadian port while traveling be-

tween Washington State and Alaska. /d. at 468. Sub-

sequent to the entry of the deportation order, but pri-

9

or to its execution in 1950, this Court’s decision in

Delgadillo v. Carmichael, 332 U.S. 388 (1947), made

clear that Farinas had not in fact made an “entry”

into the United States when he transferred ships.

Accordingly, Farinas “was not properly subject to de-

portation.” Farinas, 12 |. & N. Dec. at 473. The Board

held that “neither the finding of deportability nor the

order of deportation is clothed with the armor of im-

munity from attack while the alien is still in the

United States and before the order of deportation is

executed,” id. at 471, and granted sua sponte relief.

See also Matter of Malone, 11 1. & N. Dec. 730, 732

(BIA 1966); Matter of Bowe, 17 1. & N. Dec. 488 (BIA

1981) (reopening sua sponte in light of circuit author-

ity rejecting Board’s legal position).

Amicus seeks neither to challenge nor support the

Board’s approach, which has some support elsewhere

in the law. Cf. United States v. Grubbs, 547 U.S. 90,

96 n.2 (2006) (government may not execute a search

warrant if, subsequent to issuance but prior to execu-

tion, the government comes to understand that prob-

able cause was lacking). Rather, the point is that the

Board may adopt rules in this context that are legal

in nature and that may therefore be reviewed for le-

gal error, even if the Board describes its decision as

one issued under its residual reopening authority.

2. Sua Sponte Reopening is Em-

ployed Where Convictions Are

Vacated On Constitutional or

Legal Grounds.

Another area that frequently requires the use of

sua sponte reopening is that of vacated convictions.

Criminal convictions may render noncitizens remov-

able from the United States. See 8 U.S.C. §

10

1227(a)(2) (listing multiple criminal grounds of re-

movability). Where a conviction is later held unlawful

or improper, noncitizens may ask the agency to revis-

it the resulting removal order.

The Board has long utilized its residual reopening

authority to reopen where an underlying conviction is

found invalid after the expiration of the reopening

period. See Cruz v. Att’y Gen. of U.S., 452 F.3d 240,

246, n.3 (3d Cir. 2006) (“The parties have not identi-

fied, and we have not found, a single case in which

the Board has rejected a motion to reopen as untime-

ly after concluding that an alien is no longer convict-

ed for immigration purposes.”).4

That said, within that context, it is sometimes un-

clear whether the underlying conviction should be

considered as vacated, or not. The Board has issued

a number of cases elucidating its approach to that

determination. See Matter of Roldan, 22 1. & N. Dec.

512, 528 (BIA 1999); Matter of Rodriguez-Ruiz, 22 I.

& N. Dec. 1378 (BIA 2000); Matter of Adamiak, 23 I.

& N. Dec 878 (2006). The Board’s rule in the reopen-

ing context, see Matter of Chavez-Martinez, 241. & N.

Dec. 272 (BIA 2007), has been disapproved in the

Sixth and Ninth Circuits. Reyes-Torres v. Holder.

645 F.3d 1073 (9th Cir. 2011); Pickering v. Gonzales,

465 F.3d 263, 270 (6th Cir. 2006).

Again, Amicus’s point is not that the Board’s ap-

proach is correct, in whole or in part; but rather that

the Board has adopted a set of legal standards that

4 The circumstance of a conviction vacated after the removal

order would almost invariably involve “facts which, through no

fault of [the noncitizen], the original proceeding did not con-

tain.” Cf. ICC v. Locomotive Engineers, 482 U.S. 270, 279 (1987)

11

may be reviewed for legal error. See Negusie v. Hold-

er, 555 U.S. 511, 516 (2009).

3. The Board’s Exercise of Sua

Sponte Authority May Turn on

Legal Factors Such as the

Board’s View of Its Powers.

The Board’s exercise of its sua sponte authority is

also influenced by its understanding of its own juris-

diction and powers. The scope of the Board’s reopen-

ing authority has often been at issue in recent years

because in some cases, the Board has authority to

order removal while the Department of Homeland

Security (DHS) is authorized to grant relief from re-

moval. See, e.g., Matter of Yauri, 25 1. & N. Dec. 103

(BIA 2009) (denying reopening where residency ap-

plication could only be directed at DHS under 8

C.F.R. § 1245.2(a)(1)Gi)); Matter of Hashmi, 24 1. &

N. Dec. 785 (BIA 2009) (setting forth considerations

for granting a continuance while related matter is

pending before DHS).

The BIA takes the position that it “ha[s] not been

granted authority to reopen the proceedings of re-

spondents ... to pursue matters that could affect their

removability if we have no jurisdiction over such

matters.” Yauri, 25 Il. & N. Dec. at 110. The Board’s

approach has been rejected by the Second, Seventh,

Eighth, and Ninth circuits. Singh v. Holder, 771 F.3d

647, 653 (9th Cir. 2014); Freire v. Holder, 647 F.3d

67, 71 (2d Cir. 2011); Clifton v. Holder, 598 F.3d 486,

493 (8th Cir. 2010); Potdar v. Mukasey, 550 F.3d 594,

594 (7th Cir. 2008); Ceta v. Mukasey, 535 F.3d 639,

648 (7th Cir. 2008); Ni v. BIA, 520 F.3d 125, 130—32

(2d Cir. 2008); Kalilu v. Mukasey, 516 F.3d 777, 780

(9th Cir. 2008); but see Scheerer v. U.S. Att’y General,

12

513 F.3d 1244 (11th Cir. 2008) (deferring to Board’s

approach).

Amicus agrees with the circuit majority that the

Board’s approach is incorrect; but either way, this

issue presents. a clear instance of a legal determina-

tion arising in the sua sponte reopening context. Fed-

eral courts have competence to determine such legal

claims even if the Board frames decisions in terms of

its sua sponte reopening authority.

C. Even If No Law to Apply Principles

Were a Bar to Judicial Review Here,

They Would Not Bar Questions of Law

or Constitutional Questions, as the Ma-

jority of Circuits Agree.

In the Kucana decision, the Court left open the

question of whether and when federal courts could

review denials of sua sponte reopening. 558 U.S. at

251, n.18. Although, as the Court noted, many Courts

of Appeals have found their jurisdiction barred where

they perceived “no law to apply,” under 5 U.S.C. §

701(a)(2), the vast majority of the Courts of Appeals

have reviewed denials of sua sponte reopening that

involved questions of law and constitutional ques-

tions.

Most courts of appeals have held that review is

available for constitutional and statutory questions.

See, e.g., Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.

2010) (permitting review of “all constitutional claims

or questions of law raised by the BIA's exercise of its

discretion”) (quotations omitted); Luis v. INS, 196

F.3d 36, 41 (1st Cir. 1999) (“This court has jurisdic-

tion to review Luis's due process claim.”) (citing Ber-

nal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999));

Cruz, 452 F.3d at 246 (finding jurisdiction to review a

13

denial when an underlying conviction had been va-

cated would be present); Nawaz v. Holder, 314 F. Ap-

p'x 736, 737 (5th Cir. 2009) (“While we do not have

jurisdiction to consider Nawaz's non-constitutional

challenges to the BIA’s refusal to reopen his removal

proceedings sua sponte, we retain jurisdiction to con-

sider constitutional challenges that were raised be-

fore the BIA.”); Anaya Aguilar, 683 F.3d at 372 ;

Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.

2008) (en banc) (“Although this court lacks jurisdic-

tion over Tamenut's challenge to the BIA's decision

not to reopen sua sponte, we generally do have juris-

diction over any colorable constitutional claim.”);

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106-7

(9th Cir. 2006) (jurisdiction to review is present

where a “ ‘key part’ of the government's case [for] re-

moval,” is challenged); Lenis v. U.S. Att'y Gen., 525

F.3d 1291, 1294 n.7 (11th Cir. 2008) (“[A]n appellate

court may have jurisdiction over constitutional claims

related to the BIA's decision not to exercise its sua

sponte power.”).

As the First Circuit reasoned in Bernal- Vallejo, “a

due process argument does not involve a matter that

Congress committed to agency discretion.” 195 F.3d

at 64. Just as courts analytically isolate constitu-

tional and legal claims from abuse-of discretion

claims in other contexts, see Br. of Resp. at 22, n.7,

there is no reason why courts should not do the same

for claims of legal error and constitutional claims in

the sua sponte context.

Only the Sixth and possibly the Fourth circuits

have taken the position that cases involving constitu-

tional or statutory questions could not be reviewed

for denials of sua sponte reopening. Gor, 607 F.3d at

14

193; Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir.

2008); Harchenko v. INS, 379 F.3d 405, 409 (6th Cir.

2004); see also Mosere v. Mukasey, 552 F.3d 397, 400

(4th Cir. 2009).

In Amicus’s view, those circuits err. Insulating le-

gal error from review because it arises in relation to a

discretionary calculus is plainly inconsistent with St.

Cyr, 533 U.S. at 307-08 (distinguishing between

“fejligibility ... governed by specific statutory stand-

ard” and “the actual granting of relief [that is] not a

matter of right under any circumstances, but rather

is in all cases a matter of grace”). See also INS uv.

Cardoza-Fonseca, 480 U.S. 421, 443-44 (1987) (dis-

tinguishing between discretion as to the ultimate de-

cision and the criteria for eligibility for relief).

There is always “law to apply” in reviewing a con-

stitutional or legal question. UAW v. Brock, 783 F.2d

237, 245-46 (D.C. Cir. 1986) (“{I]t seems almost ludi-

crous to suggest that there is ‘no law to apply’ in re-

viewing whether an agency has reasonably interpret-

ed a law.”); see also, Diebold v. United States, 947

F.2d 787, 798 (6th Cir. 1991) (The constitution or law

itself would “provide standards by which to judge an

agency's ... decision.”); Davis Enters. v. EPA, 877

F.2d 1181, 1185-86 (3d Cir. 1989); Electricities of

N.C., Inc. v. Southeastern Power Admin., 774 F.2d

1262, 1267 (4th Cir. 1985); Woodsmall v. Lyng, 816

F.2d 1241, 1246 (8th Cir. 1987); Montana Air Chapter

No. 29, Ass'n of Civilian Technicians v. Fed. Labor

Relations Auth., 898 F.2d 753, 756-57 (9th Cir. 1990).

Moreover, the reasoning that would insulate some

discretionary determinations from review would have

no application to legal or constitutional questions:

cessante ratione legis cessat ipse lex. Zaduvydas v. Da-

15

vis, 533 U.S. 679, 698 (2001) (‘[T]he rationale of a

legal rule no longer being applicable, that rule itself

no longer applies.”).

Finally, the majority rule would be consistent with

Congress's statutorily-expressed intent to permit ju-

dicial review over all questions of law and constitu-

tional questions, even those arising in the context of

discretionary matters. See 8 U.S.C. §§ 1252(a)(2)(B),

(D).5 Even if the Court were not persuaded that the

INA’s jurisdictional rules preclude the application of

general jurisdictional rules, the statutory grant of

jurisdiction at § 1252(a)(2)(D) would still be entitled

to substantial respect, and would counsel adoption of

a legal regime which at least permits review over all

such matters.

In the view of Amicus, the Court need not address

these matters in order to decide this case. Because a

request for equitable tolling is not an appeal to the

Board’s sua sponte authority, the Court need not de-

cide the power of federal courts to review sua sponte

decisionmaking. The Court should await a case which

would actually turn on that question, and after full

briefing by the parties, before resolving the issue.

5 It is also relevant to note that Congress adopted §

1252(a)(2)(D) in partial response to the fact that presumptions

favoring judicial review are at their height when applied to pure

questions of law. St. Cyr, 533 U.S. at 300, 305, 308. Whatever

the virtues of insulating agency exercise of discretion from fed-

eral court oversight, that logic does not apply the insulation of

legal and constivution.:.' questions. See Henry Hart, The Power

of Congress to Limit the Jurisdiction of Federal Courts: An Exer-

cise in Dialectic, 66 Harv. L. Rev. 1362, 1395-1397 (1953).

16

Ill. THE TRADITION OF JUDICIAL REVIEW

OVER MOTIONS TO REOPEN IS

LONGSTANDING AND IMPORTANT.

The history of federal judicial review in the reopen-

ing context illustrates that judicial review has

played, and continues to play, an important and con-

tinuing role.

A. The History of the Board’s Reopening

Rules and Ongoing Judicial Review.

Some aspects of the Board’s reopening authority

are now codified in statute, see 8 U.S.C. § 1229a(c)(7),

but the residual or sua sponte aspect of that authority

remains a creature of regulation. 8 C.F.R. §

1003.2(a). The regulatory nature of residual reopen-

ing is no bar to federal court review.

The Board has found itself authorized to reopen

matters since its inception, before any regulations or

statutes were adopted. See, e.g., Matter of B-, 11. &

N. Dec. 47, 49-50 (BIA 1941) (exclusion proceedings

reopened for evidence that fraud conviction in Ger-

many was due to “political considerations, to wit: the

fact that the defendant was a Jew”); Matter of T-, 1 I.

& N. Dec. 158, 158 (BIA 1941) (reopening where Mex-

ican farmworker had resided 40 years in United

States and had wrongly believed that prior removals

precluded good moral character); Matter of W-, LI. &

N. Dec. 154, 156 (BIA 1941) (German refugee found

admissible despite expired visa due to delays in sea

voyage). Regulations were ultimately promulgated,

specifying limitations and requirements for reopen-

ing. 26 FED.REG. 12110 (Jan. 22, 1962), codified at 8

C.F.R. § 103.5. Congress codified reopening rules in

statute in 1996. See 8 U.S.C. § 1229a(c)(7).

17

Federal courts reviewed reopening decisions in the

period before regulations were promulgated. See,

e.g., United States v. Shaughnessy, 221 F.2d 578, 580

(2d Cir. 1955) (considering retroactive application of

statute to prior adultery); U.S. ex rel. Lee Kum Hoy v.

Shaughnessy, 237 F.2d 307, 312 (2d Cir. 1956) vacat-

ed sub nom. United States ex rel. Lee Kum Hoy v.

Murff, 355 U.S. 169 (1957) (reopening sought to prove

that blood testing was required based on racial dis-

crimination against Chinese).

After regulations were promulgated, the federal

courts continued to address reopening matters. JNS

v. Jong Ha Wang, 450 U.S. 139, 140-41 (1981) (per

curiam) (noting absence of statutory authority for

reopening); INS v. Rios-Pineda, 471 U.S. 444 (1985);

INS v. Abudu, 485 U.S. 94, 104-111 (1988); INS ov.

Doherty, 502 U.S. 314, 322-324 (1992); Stone, 514

U.S. at 401.

In short, the fact that Congress did not specifically

authorize reopening in statute until 1996 was no bar

to federal court review then, nor did it deprive courts

of the means of undertaking that review or of grant-

ing appeals in meritorious cases. The same is true

today; the regulatory nature of residual reopening

authority is no bar to the exercise of judicial review.

B. Review of Reopening Matters is Im-

portant.

Motions to reopen, and judicial review thereof, con-

tinue to serve the “important purpose” of “ensur[ing]

a proper and lawful disposition” of a removal matter.

Dada v. Mukasey, 554 U.S. 1, 18 (2008).

Judicial review plays a crucial role in ensuring the

fairness and substantive legality of the system, even

as to discretionary matters. United States ex rel. Ac-

18

cardi v. Shaughnessy, 347 U.S. 260 (1954); St. Cyr,

533 U.S. at 310. It cannot be disputed that removal

matters implicate weighty and important interests.

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)

(“[D]eportation is a drastic measure and at times the

equivalent of banishment or exile.”); Ng Fung Ho uv.

White, 259 U.S. 276, 284 (1922) (Deportation may

result in “loss of both property and life; or of ail that

makes life worth living.”); Fong Yue Ting v. United

States, 149 U.S. 698, 740 (1893) (Brewer, J., dissent-

ing). Some federal court review over those matters,

albeit limited and deferential, is crucial.

CONCLUSION

The Court has no occasion in the instant matter to

reach the questions addressed in this brief, because

the Fifth Circuit erred in treating equitable tolling

matters as decisions issued sua sponte and unreview-

able by a court of appeals. In any event, however, the

Court should not conclude as a blanket matter that

sua sponte decisions are unreviewable; at the very

least, federal courts may review legal and constitu-

tional questions arising in such decisions.

19

Respectfully submitted,

Charles Roth

Counsel for Amicus Curiae

NATIONAL IMMIGRANT

JUSTICE CENTER

208 South LaSalle Street

Suite 1300

Chicago, IL 60604

MARCH 5, 2015