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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

Es Ce CET TD vecesicctesssnsesievccuschisadeisinenaiagin i
TABeaee OF AUT ERIE 0 BMD ccc ccscccccvcccsoccsccssonsvscesceans ill
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0343%3A11. Public record. Not legal advice.