Opposition Brief — Gor v. Holder

No. 10-940

In the Supreme Court of the Gnited States

TUSHAR PRAVINKUMAR GOR, PETITIONER

v).

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD EF. KEENER

ROBERT N. MARKLE

Attorneys

Department of Justice

Washington, D.C. 20580-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in holding that

the Board of Immigration Appeals’ decision not to exer

cise its discretionary authority to reopen petitioner’s

immigration proceedings sua sponte is unreviewable

TABLE OF CONTENTS

Page

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CNNINE co ssh ese cae neue waa pes Oe EEL

TABLE OF AUTHORITIES

Cases:

Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) ............ 20

Argueta v. Holder, 617 F.3d 109 (2d Cir. 2010) ......... 23

Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008) ...... 9, 20

Belay-Gebru v. INS, 327 F.3d 998 (10th Cir. 2003) ... 21, 24

Bernal-Vallejo v. INS, 195 F.3d 56 (1st Cir. 1999) ... 23, 26

C-V-T-, In re, 22 I. & N. Dec. 7 (B.I.A. 1998) .......... 2.3

Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003) ... 20

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir.

ER ee re re ar Kane 23

Cevilla v. Gonzales, 446 F.3d 658 (2006) ......000.00... 25

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) .......... 14

Cruz v. United States Att'y Gen., 452 F.3d 240

Se Re EE a vies sven oc teen sees ees eae

Dada v. Mukasey, 554 U.S. 1 (2008) ............... 14, 16

BKkimian v. INS, 303 F.3d 1153 (9th Cir. 2002) ......... 21

Enriquez-Alvarado v. Ashcroft, 371 F.3d 246 (5th Cir.

er er ne rr en eee on 20

G-D-, In re, 22 1. & N. Dec. 11382 (B.I.A. 1999) ....... 4, 27

Gashi v. Holder, 382 Fed. Appx. 21 (2d Cir. 2010) ...... 21

[V

Cases—Continued: Page

Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) ......... 2

Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004) ... 9,11, 12

Heckler v. Chaney, 470 U.S. 821 (1985) .............. 9,12

INS v. Abudu, 485 U.S. 94 (1988) .............2. 2c eee 3

INS v. Doherty, 502 U.S. 314 (1992) ................45. 4

INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) ............ 2

ICC v. Brotherhood of Locomotive E'ng’rs, 482 U.S.

ee ieee Laer Vetted be os 28

Jaimes-Aguirre v. United States Att'y Gen., 369 Fed.

po ae eh Le | re 21

Kucana v. Holder, 130 S. Ct. 827 (2010) ....... 9,16, 17, 22

Lents v. United States Att’y Gen., 525 F.3d 1291 (11th

ros aca Bab ac ha'a's ban 05-65-66-4-i 13, 21, 25

Lincoln v. Vigil, 508 U.S. 182 (1993) .......... 2c cee eee 12

Luis v. INS, 196 F.3d 36 (ist Cir. 1999) ............ 20,26

Marin, In re, 161. & N. Dec. 581 (B.1.A. 1978) .......... 3

Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir.

8 Rly oe Pe ee nee 21

Mendhoola v. Holder, 585 F.3d 1308 (10th Cir. 2009) ..... 23

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

cert. denied, 130 S. Ct. 187 (2009) ............... 20,24

Nawaz v. Holder, 314 Fed. Appx. 736 (5th Cir. 2009) .... 23

Neves v. Holder, 613 F.3d 30 (1st Cir. 2010), petition

for cert. pending, No. 10-1030 (filed Feb. 14,

ane Cre afk hee eae dak beh 6 hak ees 11, 21

Ochoa v. Holder, 604 F.3d 546 (8th Cir. 2010), petition

for cert. pending, No. 10-920 (filed Jan. 18,

Pt oc ccenur seks yeahteee bse 64 05405 Chee Ke8 11, 21

Cases—Continued: Page

Ozeiry v. Attorney Gen., 400 Fed. Appx. 647 (3d Cir.

SE Sari e cae dee aeRO T EET ee een aah ees <a ae

Pilch v. Ashcroft, 353 F.3d 585 (7th Cir. 2003) .......... 20

Pllumi v. Attorney Gen., No. 09-4454, 2011 WL

Ries ei Goa Car. Baw. G, BOLL) «on cccecssvccses: 21, 25

Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) .......... 23

Sharma v. Holder, 633 F.3d 865 (9th Cir. 2011) ........ 21

Stone v. INS, 514 U.S. 386 (1995) ................-. 14,15

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

AS cue Sale tard wel aaa a a a ee ee ke wo 12, 18, 21, Zd

Webster v. Doe, 486 U.S. 592 (1988) ...............-.6. 19

Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) ....... 15, 16

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C.

| PPro eer eee TT eC ere eT ee 12, 21, 28

[legal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, 110 Stat.

EE AWA oda seuwenaecek ) Mks adh aneee ree thks 16

Immigration Act of 1952, Pub. L. No. 82-414, ch. 414,

66 Stat. 163:

SE EE cn o'cccccrve deb ustaveteeee es 15

Immigration and Nationality Act, 8 U.S.C. 1101

EE a re oer er Sere Pre 2

BIE a. ee nr 12

BS U.S.C. IZZTIGKENM) occ ccccenccscccvcees ..0

DS Uae EINE © ns Sc csc eevee bee deun 2

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VI

Statutes and regulations—Continued: Page

8 U.S.C. 1229a(c)(7)(B) ...... Pre ee Oy) 3

SU... SG 6 ko va tacos anenateneees 1]

S UB. TRCN) 5 vn cedunceseccssanneae. 3

8 U.S.C. 1229b (2006 & Supp. ITI 2009) ......... 2,6

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SU BG, SO acuc be 0005 ¢ewan see 11,18

S UBL. TED kv be cceva ewes ee eees 19, 22, 24

8 U.B.C. 1ZGRIONE MID occ ccc cenesseen 9, 10, 17, 18

8 U.S.C. 1252(aX(2X(C) ......... ‘cadence

8 U.S.C. TRA) sc vcccanscosvcvsusoa passim

8 USA. SRR kk xasdeccaen toe 11

SB UA... SO 66st cas ceenueees ectusa are

8 C.F.R.:

Section 1003.1(e)(4) ........ PP Ne re re

Section TOUR) is coos oakennsesnto ease 4,7,8

Section TOUB.ZA) oc sci cceuvcscses ae Va Cae ee 3

Sectinn TOUS IO) os kccaivcedvcs cess bere

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Section TGs +6600 6<0050unessed oboe eee 23

Section 1008.23(b) ................ eure es eeaeatnes 3

Section IGG meh? sh isos so au eceuueee eee aeeeee 3, 4

Raction TORR eee) sk occ cued ucgveseeuneceueeren 3,4

Section TRGGT occ cuc 6iva0s 6s50464550404 0 ee 2

Ohio Rev. Code § 2919.21(B) ....... ¥en an ae ere

17 Fed. Reg. 11,475 (1952) ........ ek eeee eee 15

Miscellaneous—Continued

23 Fed. Reg. 9118-9119 (1958

61 Fed. Reg. (1996)

p. 18,900 .

p. 18,905

Jn the Supreme Court of the Gnited States

No. 10-940

TUSHAR PRAVINKUMAR GOR, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-42a)

is reported at 607 F.3d 180. The decision of the Board

of Immigration Appeals (Pet. App. 43a-45a) denying peti-

tioner’s request that the Board reopen his proceedings

sua sponte is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 4, 2010. A petition for rehearing was denied on

October 5, 2010 (Pet. App. 46a-47a). On December 13,

2010, Justice Kagan extended the time within which to

file a petition for a writ of certiorari to and including

February 3, 2011, and the petition was filed on January

18, 2011. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. a. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seg., the Attorney General, in his

discretion, may cancel the removal of an alien who is

found to be removable. 8 U.S.C. 1229b (2006 & Supp.

III 2009). The discretion of the Attorney General to

grant relief from removal is akin to “a judge’s power to

suspend the execution of a sentence, or the President’s

to pardon a convict.” INS v. Yueh-Shaio Yang, 519 U.S.

26, 30 (1996) (citation omitted). To obtain cancellation

of removal, the alien must demonstrate both that he is

statutorily eligible for such relief and that he warrants

a favorable exercise of discretion. See, e.g., Guled v.

Mukasey, 515 F.3d 872, 879-880 (8th Cir. 2008). The

alien bears the burden of proving eligibility for cancella-

tion of removal. 8 U.S.C. 1229a(c)(4)(A)(i); 8 C.F.R.

1240.8(d).

To demonstrate statutory eligibility for cancellation

of removal, an alien who is a lawful permanent resident

must show that he has been lawfully admitted for per-

manent residence for not less than five years, has re-

sided in the United States continuously for seven years

after having been admitted in any status, and has not

been convicted of an aggravated felony. 8 U.S.C.

1229b(a).

In addition to satisfying the statutory eligibility re-

quirements, an applicant for cancellation of removal

must establish that he warrants such relief as a matter

of discretion. Jn re C-V-T-, 22 I. & N. Dec. 7 (B.I.A.

1998). Whether an applicant warrants discretionary can-

cellation of removal is a case-specific determination

made by “balancling] the adverse factors evidencing the

alien’s undesirability as a permanent resident with the

social and humane considerations presented in his behalf

3

to determine whether the granting of . . . relief ap-

pears in the best interest of this country.” Jd. at 11

(quoting /n re Marin, 16 1. & N. Dec. 581, 584 (B.I.A.

1978)).

b. An alien may file a motion to reopen removal pro-

ceedings based on previously unavailable, material evi

dence. 8 U.S.C. 1229a(c)(7)(B); 8 C.F.R. 1003.2(¢). Such

a motion is to be filed with the immigration judge (IJ) or

the Board of Immigration Appeals (Board), depending

upon which was the last to render a decision in the mat-

ter. 8 C.F.R. 1003.2(c) (Board), 1003.23(b) (IJ). The

alien must “state the new facts that will be proven at a

hearing to be held if the motion is granted” and must

support the motion “by affidavits or other evidentiary

material.” 8 U.S.C. 1229a(¢)(7)(B); 8 C.F.R. 1008.2(¢)(1),

1003.23(b)(3). When the motion to reopen is filed with

the Board, it “shall not be granted unless it appears to

the Board that evidence sought to be offered is material

and was not available and could not have been discov-

ered or presented at the former hearing.” 8 C.F.R.

1003.2(c)(1); see 8 C.F.R. 1003.23(b)(3) (IJ). An alien is

entitled to file only one such motion to reopen, and it

generally must be filed within 90 days of entry of the

final order of removal. 8 U.S.C. 1229a(c)(7)(A) and

(C)(i); 8 C.F.R. 1003.2(¢)(2), 1003.23(b)(1).

Motions to reopen removal proceedings are “dis-

favored” because “[t}here is a strong public interest in

bringing litigation to a close as promptly as is consistent

with the interest in giving the adversaries a fair oppor-

tunity to develop and present their * * * cases.” JNS

v. Abudu, 485 U.S. 94, 107 (1988). The IJs and the

Board have discretion in adjudicating a motion to re-

open, and they may “deny a motion to reopen even if

the party moving has made out a prima facie case

4

for relief.” 8 C.F.R. 1003.2(a) (Board); see 8 C.F.R.

1003.23(b)(3) (IJs); see also INS v. Doherty, 502 U.S.

314, 323 (1992).

If the alien fails to file a timely motion to reopen, he

may suggest to the IJ or Board that his case should be

reopened sua sponte. The IJ or the Board may exercise

discretion to reopen an alien’s case sua sponte at any

time. 8 C.F.R. 1003.2(a) (“The Board may at any time

reopen or reconsider on its own motion any case in

which it has rendered a decision.”), 1003.23(b)(1) (simi-

lar for IJ). The Board “invoke[s] [its] sua sponte au-

thority sparingly, treating it not as a general remedy for

any hardships created by enforcement of the time and

number limits in the motions regulations, but as an ex-

traordinary remedy reserved for truly exceptional situa-

tions.” In re G-D-, 22 I. & N. Dee. 1132, 1133-1134

(B.1.A. 1999).

2. Petitioner is a native and citizen of India who was

admitted to the United States as a lawful permanent

resident in February 1985. Pet. App. 3a. Petitioner fa-

thered two children in the United States out of wedlock.

Pet. App. 3a; Administrative Record (A.R.) 121. He nei-

ther lived with nor supported those children. A.R. 122-

123, 153.

In September 2004, petitioner was convicted on four

counts of felony non-support of minor children, in viola-

tion of Ohio Revised Code § 2919.21(B), and was sen-

tenced to three years of community control. Pet. App.

3a; A.R. 140-141, 216-222. In May 2006, he was con-

victed on three additional felony counts of violating the

same statute and was sentenced to two years of impris-

onment. Pet. App. 3a-4a; A.R. 140-141, 223-230.

The former Immigration and Naturalization Service

charged petitioner with being removable as an alien who

5

has been convicted of a crime of domestic violence, stalk-

ing, child abuse, child neglect, or child abandonment.

Pet. App. 4a; A.R. 241-243; see 8 U.S.C. 1227(a)(2)(E)(i).

Petitioner first appeared before an IJ in October

2006. Pet. App. 4a; A.R. 132-134.’ He appeared pro se;

the IJ notified him of his right to have a lawyer repre-

sent him and offered to provide him with a “list of orga-

nizations that might represent [him] at low cost or no

charge.” A.R. 133-134. Petitioner confirmed that he

understood his right to retain an attorney and indicated

that he wanted more time to hire one. Pet. App. 4a; A.R.

134. The IJ continued the case for one month. /d2d.

In November 2006, petitioner again appeared before

the IJ pro se and asked for additional time to retain

counsel. A.R. 135-137. The IJ continued the case for

three months. /d. at 137. The IJ advised petitioner that

if he did not obtain a lawyer by his next hearing, he

would have to proceed without one. Pet. App. 4a; A.R.

136-137. Petitioner told the IJ that he understood. A.R.

137.

In February 2007, petitioner once again appeared

before the IJ prose. Pet. App. 4a-5a; A.R. 138-143. He

conceded that he was removable as charged. Pet. App.

5a; A.R. 140-141. In response to the IJ’s questioning,

petitioner indicated that he intended to apply for asy-

lum. Pet. App. 5a; A.R. 141-142. The IJ continued the

case to allow petitioner to file an asylum application.

Ibid. The IJ again reminded petitioner that he could

secure a lawyer to represent him at the next hearing.

A.R. 142.

' Petitioner appeared via videoconference for each of his hearings

because he was incarcerated at the time.

6

In April 2007, petitioner appeared pro se for the

merits hearing on his application for relief from re-

moval. A.R. 144-165. He had decided not to file an asy-

lum application; instead, he filed an application for dis-

cretionary cancellation of removal under 8 U.S.C. 1229b.

Pet. App. 5a; A.R. 207-214.

After a hearing, the IJ found petitioner removable as

charged and denied his application for cancellation of

removal. A.R. 126-131. Although the IJ determined

that petitioner was statutorily eligible for cancellation of

removal, he denied petitioner’s application as a matter

of discretion. A.R. 127-130. The IJ reached this conelu-

sion by balancing the positive factors in favor of allowing

petitioner to remain in the United States against his

negative factors. A.R. 127-128 (citing Jn re Marin, su

pra). The IJ found that there was one positive fac-

tor—petitioner’s longtime residence in the United

States. A.R. 128. The IJ then found that there were

numerous negative factors. He noted that petitioner

had fathered two children in the United States, but that

they live with their mother and petitioner has rendered

“little or no support to these children,” either as finan-

cial support or “moral support.” /bzd.; see A.R. 129-130

(finding no evidence that petitioner “has been: providing

them with any parental guidance”). The IJ also deter-

mined that petitioner’s seven felony convictions for fail-

ure to pay child support were significant negative fac-

tors, especially because petitioner had been “given two

opportunities” to rectify the problem and failed to do so.

A.R. 129.

Further, the IJ observed that petitioner had a “poor”

employment record, which included four short-term

jobs, the last of which he left because “he was using

drugs.” A.R. 128. The IJ noted that petitioner “has a

ry

‘

history of drug use” and did not “participate in any pro-

grams to rehabilitate himself” until “after he was ar-

rested” and imprisoned. A.R. 129. The IJ also found as

a negative factor that petitioner has not paid his taxes

regularly. A.R. 130. Finally, the IJ noted that although

petitioner has one brother who lives in the United

States, his parents live in India. /b2d.

The IJ concluded that petitioner’s many negative

factors—failure to support his children, his poor employ-

ment record, his drug use, and his failure to pay

taxes—outweighed the one positive factor, the length of

petitioner’s residence in the United States. A.R. 129-

130. Accordingly, the IJ determined that petitioner did

not warrant a grant of cancellation of removal in the

exercise of discretion and ordered him removed to India.

A.R. 130.

3. Petitioner appealed the IJ’s decision to the Board.

A.R. 100-110. He argued that the IJ erred in deciding

that the negative factors in his case outweighed the posi-

tive factors and in denying him cancellation of removal

as a matter of discretion. A.R. 105-110.

The Board summarily affirmed the IJ’s decision

without issuing a separate opinion, making the IJ’s deci-

sion the final agency determination. A.R. 51; 8 C.F-.R.

1003.1(e)(4).

4. Petitioner did not seek judicial review of the

Board’s decision. Seven months after the Board’s deci-

sion, petitioner, through counsel, suggested to the Board

that it exercise its sua sponte authority to reopen his

case under 8 C.F.R. 1003.2(a). A.R. 17-30. He contend-

ed that: (1) the IJ failed to follow agency regulations

because he failed to determine whether petitioner re-

ceived a list of low-cost legal representatives; (2) the IJ

erred in proceeding with petitioner’s removal! hearing

8

after several continuances because petitioner had not

retained a lawyer; (3) the IJ erred in finding petitioner

removable; and (4) the IJ erred in failing to determine

whether petitioner was eligible for another form of dis-

cretionary relief, such as adjustment of status or volun-

tary departure. Jb7d. Petitioner did not challenge the

IJ’s denial of his application for cancellation of removal.

The Board denied petitioner’s motion. Pet. App. 43a-

45a. The Board noted that because petitioner filed his

motion more than 90 days after entry of his final order

of removal, the Board could reopen proceedings only if

it decided to exercise its sua sponte authority under

8 C.F.R. 1003.2(a), and the Board has reserved sua

sponte reopening for “exceptional situations.” Pet. App.

44a (citing cases; internal quotation marks omitted).

The Board examined petitioner’s claims and con-

cluded that, based on the record, his case did not pres-

ent the sort of “exceptional situation” that might war-

rant reopening a case with a final removal order sua

sponte. Pet. App. 44a. The Board explained that “all of

the claims raised by [petitioner] in the motion could

have been presented to the Board on appeal,” but peti-

tioner failed to raise any of those issues at that time.

Ibid. The Board also noted that the “recent case law”

upon which petitioner relied (A.R. 19) either “arises out-

side of the Sixth Circuit,” the circuit “whose case law

applies to this appeal,” or was “unpublished or not di-

rectly relevant to [petitioner’s] case.” Pet. App. 44a-45a.

Accordingly, the Board declined to exercise its discre-

tionary authority to reopen proceedings swa sponte. Id.

at 45a.

5. The court of appeals dismissed petitioner’s peti-

tion for review. Pet. App. la-42a. The court noted that

petitioner had conceded his removability, that he did not

9

seek judicial review of his final removal order, and that

he did not file a motion to reopen proceedings within the

time limits specified by statute. Jd. at 5a-6a, 8a-10a.

Instead, the court observed, petitioner waited until sev-

eral months after his removal order became final and

then asked the Board to reopen his case on its own mo-

tion. 7d. at 10a. Relying on its prior precedents, the

court held that the Board’s decision not to reopen an

alien’s case sua sponte is not judicially reviewable. /d.

at 15a-l6a (citing Harchenko v. INS, 379 F.3d 405,

410-411 (6th Cir. 2004), and Barry v. Mukasey, 524 F.3d

721, 724 (6th Cir. 2008)). The court explained that the

decision whether to reopen proceedings swa sponte is

committed to agency discretion by law, and that there

are no meaningful standards against which to judge the

agency’s exercise of discretion. /d. at 15a-16a (citing

Heckler v. Chaney, 470 U.S. 821 (1985)). The court ad-

hered to this circuit law, although it suggested that the

issue should be reconsidered en banc in light of this

Court’s recent decision in Kucana v. Holder, 130 S. Ct.

827 (2010). Pet. App. 23a.°

Chief Judge Batchelder concurred, agreeing that the

Board’s decision not to reopen a case sua sponte is not

judicially reviewable and explaining why Kucana did not

change that conclusion. Pet. App. 29a-35a. She ex-

plained that “[t]his case is fundamentally different from

Kucana” for two reasons: (1) Kucana concerned statu-

tory interpretation—namely, the question whether

8 U.S.C. 1252(a)(2)(B)(ii) by its terms precludes judicial

review of timely motions to reopen—not the question

* The court also held that it lacked jurisdiction to review the Board's

original decision denying petitioner’s application for cancellation of

removal. Pet. App. 2a. Petitioner does not challenge that holding be-

fore this Court.

10

whether certain decisions are unreviewable because

they are committed to agency discretion by law, Pet.

App. 29a-31a; and (2) “there is a world of difference be-

tween the immigrant’s statutory right to file a motion to

reopen, which was at issue in Kucana, and the discre-

tionary right of the [Board]—a right neither granted nor

addressed by Congress—to reopen sua sponte,” because

“(t]he power of the [Board] to reopen sua sponte arises

only from its own regulations” and “Congress has taken

no steps to establish an individual right applicable to

[petitioner],” id. at 3la-33a.

Judge Cole concurred in part and concurred in the

judgment, stating his view that although Aucana ad-

dressed only the statutory-interpretation question

“whether § 1252(a)(2)(B)(ii) bars appellate review of

[Board] decisions to deny timely motions to reopen” and

the Court specifically “disclaimed expressing any opin-

ion on” the reviewability of Board decisions not to re-

open cases sua sponte, the Kucana Court’s “rationale”

suggests that Board decisions not to reopen proceedings

sua sponte should be judicially reviewable. Pet. App.

35a-42a.°

6. Petitioner filed a petition for rehearing en banc,

which was denied, with no judge in active service calling

for a vote on the petition. Pet. App. 46a-47a.

ARGUMENT

Petitioner contends (Pet. 11-33) that the court of ap-

peals erred in holding that the Board’s decision not to

* The Department of Homeland Security reports that petitioner was

removed to India in December 2008, while his petition for review of the

Board's decision not to reopen his case sua sponte was pending. Peti-

tioner had sought a stay of removal from the court of appeals, which

was denied. 08-3859 Order (6th Cir. Dec. 11, 2008).

11

exercise its discretion to reopen his case sua sponte is

unreviewable. The court of appeals’ decision is correct,

and it does not conflict with any decision of another

court of appeals or of this Court. Moreover, this case

would present a poor vehicle to review the question be-

cause petitioner based his request for sua sponte re-

opening entirely on claims that were previously avail-

able during his removal proceedings but that he either

declined to present or affirmatively conceded. Further

review is therefore unwarranted.‘

1. The court of appeals correctly held that the

Board’s decision not to reopen petitioner’s immigration

proceedings sua sponte is unreviewable. Petitioner did

not seek judicial review of his final order of removal,

Pet. App. 6a; see 8 U.S.C. 1252(a) and (b)(1) (authorizing

judicial review of final removal orders), and he did not

file a motion to reopen immigration proceedings within

the time frame Congress prescribed, Pet. App. 9a-10a;

see 8 U.S.C. 1229a(c)(7)(C) (motion to reopen generally

must be filed within 90 days of final removal order). In-

stead, petitioner waited until seven months after his

removal order became final and then requested the

Board to reopen his case on its own motion. The Board

declined to take that extraordinary step, Pet. App. 43a-

45a, and the court of appeals, relying on circuit prece-

dent, held that the Board’s decision not to reopen pro-

ceedings sua sponte is not judicially reviewable, zd. at

15a-16a.

a. The court of appeals correctly recognized that the

Board’s decision not to exercise its authority to reopen

* The question presented in this case is also presented in the pending

petitions in Ochoa v. Holder, petition for cert. filed, No. 10-920 (Jan. 18,

2011), and Neves v. Holder, petition for cert. filed, No. 10-1030 (Feb. 14,

2011).

12

proceedings sua sponte is not judicially reviewable be-

cause it is committed to the Board’s discretion by law.

As the court observed, “(t]he decision whether to invoke

sua sponte authority is committed to the unfettered dis-

cretion of the [Board]”; “[t]herefore, the very nature of

the claim renders it not subject to judicial review.” Pet.

App. 15a (quoting Harchenko, 379 F.3d at 410-411). Un-

der the Administrative Procedure Act, judicial review is

not available when “agency action is committed to

agency discretion by law.” 5 U.S.C. 701(a)(2); see Lin-

coln v. Vigil, 508 U.S. 182, 191-192 (1993); Heckler v.

Chaney, 470 U.S. 821, 829-831 (1985). That is true with

respect to sua sponte reopening, because the decision

whether to reopen a case is entirely discretionary and

there are no meaningful standards or guidelines to re-

view the Board’s decision. Pet. App. 15a-16a; see, e.g.,

Tamenut v. Mukasey, 521 F.3d 1000, 1003 (8th Cir.

2008) (per curiam) (en banc). As the court of appeals

previously has explained, the Board’s regulation ad-

dressing sua sponte reopening “provides no standard by

which to judge the agency’s exercise of discretion”; the

regulation “allows the [Board] to reopen proceedings in

exceptional situations,” but “does not require the

[Board] to do so.” Harchenko, 379 F.3d at 411. Indeed,

the regulation governing sua sponte reopening “was

promulgated pursuant to a general grant of regulatory

authority that sets no standards for this decision” (see

8 U.S.C. 1103(g)), and the regulation “provides no guid-

ance as to the [Board’s] appropriate course of action,

sets forth no factors for the [Board] to consider in decid-

ing whether to reopen sua sponte, places no constraints

on the [Board’s] discretion, and specifies no standards

for a court to use to cabin the [Board’s] discretion.”

Tamenut, 521 F.3d at 1004. The regulation does not

13

require the Board to reopen a removal proceeding under

any particular circumstances. Rather, it simply pro-

vides the Board the discretion to reopen proceedings if

and when it elects to do so.

Furthermore, unlike the statutory and regulatory

provisions allowing an alien to file one motion to reopen,

the regulation permitting the Board to reopen a case

sua sponte establishes a procedural mechanism for the

Board itself in aid of its own internal administration. It

does not confer any privately enforceable rights on an

alien. See Lenis v. United States Att’y Gen., 525 F.3d

1291, 1294 (11th Cir. 2008) (the regulation permitting

sua sponte reopening “merely provides the [Board] the

discretion to reopen immigration proceedings as it sees

fit”) (citation omitted). As Chief Judge Batchelder ex-

plained in her concurring opinion below, Congress has

not conferred upon aliens any rights with respect to sua

sponte reopening: “(t]he power of the [Board] to reopen

sua sponte arises only from its own regulations,” and

“Congress has taken no steps to establish an individual

right applicable to [aliens].” Pet. App. 32a (Batchelder,

C.J., concurring).

Moreover, the purposes of the INA, and of its judicial

review provisions, would be undermined if decisions by

the Board not to exercise its discretionary swa sponte

reopening authority were subject to judicial review.

Congress enacted statutory provisions governing mo-

tions to reopen and judicial review in 1990 and 1996 in

order to prevent abuses of motions to reopen by impos-

ing time and numerical limitations on such motions,

shortening the time for judicial review, and requiring

the consolidation of petitions for judicial review of the

denials of motions to reopen with the petition for review

of the final order of removal (see 8 U.S.C. 1252(b)(6)).

14

Those changes were adopted for the purpose of expedit-

ing the process of administrative and judicial review, the

final resolution of removal proceedings, and the actual

removal of the alien. See Dada v. Mukasey, 554 U.S. 1,

12-15 (2008); Stone v. INS, 514 U.S. 386, 393-394 (1995).

A determination by the Board not to exercise its discre-

tion to reopen a case swa sponte may be made many

months or more after the order of removal became final,

the time for filing a motion to reopen had expired (or

such a motion had been denied), and the time for judicial

review had expired. If such determinations were then

judicially reviewable, the result would be to circumvent

the time and numerical limits Congress imposed on judi-

cial review. An alien, simply by requesting an IJ or the

Board to reopen a case sua sponte, could thereby trigger

one or more new rounds of judicial review, perhaps

seeking stays of removal, and creating delays and con-

gestion in the courts. The potential for those conse-

quences weighs heavily against recognizing a right of

judicial review.°

° Indeed, there is substantial reason to question whether Congress

contemplated that a Board decision not to reopen proceedings sua

sponte is the sort of decision over which a court of appeals would even

have jurisdiction when it authorized judicial review of final removal

orders in 8 U.S.C. 1252. The INA provides an alien with the right to file

one motion to reopen, subject to specified time and other limits; it

makes sense that Congress would have expected that denials of such

motions would be judicially reviewable in light of the fact that Congress

authorized such motions by statute. See Cheng Fan Kwok v. INS, 392

U.S. 206, 216 (1968) (predecessor statute to Section 1252 contemplates

judicial review of “only those determinations made during a [removal]

proceeding,” “including those determinations made incident to a motion

to reopen such proceedings” (emphasis added)); 8 U.S.C. 1252(b)(6)

(judicial review of “motion to reopen or reconsider” shall be consoli-

dated with petition for review of an underlying removal order (emphasis

15

That conclusion is strongly supported by the history

of the Board’s sua sponte reopening authority. Con-

gress enacted the INA in 1952, see Pub. L. No. 82-414,

§ 103(a), 66 Stat. 163, 173, charging the Attorney Gen-

eral “with the administration and enforcement” of the

Act, and authorized him to “establish such regulations

* * * as he deems necessary for carrying out {that] au-

thority.” Pursuant to that delegated authority, the At-

torney General promulgated a series of regulations de-

fining the“[p]owers of the Board,” which included the

power to “reopen * * * any case in which a decision

has been made by the Board.” 17 Fed. Reg. 11,475,

§§ 6.1(b) and (d), 6.2 (1952). In 1958, the Attorney Gen-

eral clarified that the Board may reopen proceedings in

response to a motion by the parties or on its own motion.

See 23 Fed. Reg. 9118-9119, § 3.2; see also Zhang v.

Holder, 617 F.3d 650, 656 (2d Cir. 2010).

Moreover, Congress has addressed motions to re-

open filed by aliens, but it has never addressed the

Board’s sua sponte reopening power. In 1990, Con-

gress became concerned that aliens illegally present in

the United States were filing motions to reopen to pro-

long their stay, and it directed the Attorney General to

added)). But an alien has no personal right in connection with sua

sponte reopening of final removal proceedings. It therefore is not ob-

vious that Section 1252 contemplates review of the Board’s exercise of

its own discretion on such matters, which occurs after a removal order

has become final and the alien has no right to further agency review.

That is especially so because to authorize judicial review of decisions

not to reopen a case sua sponte would extend immigration proceedings

substantially, contrary to the need for finality that Congress has

recognized in several provisions in the INA. See Stone, 514 U.S. at 399-

400 (noting Congress’s concern that “every delay works to the advan-

tage of the deportable alien who wishes merely to remain in the United

States” (internal quotation marks omitted)).

16

issue regulations to limit the number of motions to re-

open an alien may file and the time period for filing such

motions. See Dada v. Mukasey, 554 U.S. 1, 13 (2008).

After the Attorney General promulgated those regula-

tions, see 61 Fed. Reg. 18,900, 18,905 (1996), Congress

codified key portions of them, providing that each alien

may file one motion to reopen, subject to specified time

and other limits. See Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, § 304(a)(3), 110 Stat. 3009-593. Notably,

Congress said nothing about the Board’s swa sponte re-

opening authority. Thus, although Congress has de-

cided that aliens have a personal right under the INA to

file one motion to reopen within the time limit specified,

it has “taken no steps to establish an individual right”

for aliens to seek or obtain swa sponte reopening, in-

stead leaving that discretionary mechanism entirely to

the Board, Pet. App. 32a (Batchelder, C.J., concurring);

see Zhang, 617 F.3d at 662 (noting that although Con-

gress codified standards for timely motions to reopen

based on new evidence, it “was silent asto * * * the

[Board’s] sua sponte authority”). Accordingly, the

Board’s decision whether to reopen proceedings sua

sponte is committed to agency discretion by law and is

not reviewable by a court.

b. Petitioner makes essentially two arguments about

how in his view the court of appeals erred. First, he

contends that after this Court’s recent decision in

Kucana v. Holder, 130 S. Ct. 827, 834 (2010), all Board

decisions not to reopen a case sua sponte are judicially

reviewable. Pet. 12, 18-24. Second, he argues that even

if such decisions generally are not judicially reviewable,

the Board’s decision not to exercise its sua sponte au-

thority in his case is reviewable because it raises consti-

17

tutional claims or questions of law. Pet. 12, 24-32. Nei-

ther argument is correct.

i. Petitioner is mistaken in arguing that all deci-

sions by the Board not to exercise its sua sponte author-

ity are judicially reviewable after Kucana. As petitioner

himself recognizes (Pet. 8), Kucana did not address judi-

cial review of a denial of sua sponte reopening. The

question in Kucana was one of statutory interpretation:

whether 8 U.S.C. 1252(a)(2)(B)(ii), which states that no

court shall have jurisdiction to review any action of the

Attorney General “the authority for which is specified

under this subchapter to be in the discretion of the At-

torney General,” applies to actions the discretionary

authority for which is specified in regulations, rather

than the relevant statutory subchapter. 130 S. Ct. at

831. The Court concluded that Section 1252(a)(2)(B)(ii)

does not bar judicial review of determinations that are

made discretionary by regulation, such as determina-

tions on an alien’s motion to reopen under 8 U.S.C.

1229a(c)(7). 1380S. Ct. at 836-837.

In the decision below, the reviewability of the

Board’s decision did not depend on Section

1252(a)(2)(B)Qii), the statutory provision at issue in

Kucana. Instead, the court of appeals held that the

Board’s decision not to reopen a case sua sponte is

unreviewable because it is committed to agency discre-

tion by law, an issue that was not addressed in Kucana.

Pet. App. 15a-16a. Indeed, the Kucana Court specifi-

cally stated that it “express[ed] no opinion on whether

federal courts may review the Board’s decision not to

reopen removal proceedings sua sponte,” while noting

that 11 courts of appeals had held that “such decisions

are unreviewable because sua sponte reopening is com-

18

mitted to agency discretion by law.” 1308S. Ct. at 839

n.18 (citing Tamenut, 521 F.3d at 1003-1004).

Contrary to petitioner’s contention (Pet. 19), Au-

cana’s “logic” does not lead to the conclusion that deni-

als of swa sponte reopening are reviewable. The answer

to that question turns on whether the regulation autho-

rizing sua sponte reopening confers private rights and

whether it imposes standards to guide agency decision-

making. By contrast, the issue in Kucana was whether

the exercise of jurisdiction to review the denial of a mo-

tion to reopen, which the alien had a personal statutory

right to file, was precluded by a certain statutory provi-

sion, 8 U.S.C. 1252(a)(2)(B)(ii). The Court’s interpreta-

tion of the statute at issue in Kucana simply does not

speak to the question whether the decision whether to

reopen a case sua sponte is committed to agency discre-

tion and is for that reason unreviewable. Therefore,

nothing in the Kucana Court’s holding or rationale sup-

ports judicial review of Board decisions not to exercise

sua sponte reopening authority.

ii. Alternatively, petitioner contends (Pet. 24-33)

that even if decisions not to reopen sua sponte generally

are unreviewable because they are committed to agency

discretion by law, courts may review the Board’s deci-

sion not to reopen his case sua sponte because he raised

“constitutional and legal questions.” Petitioner’s argu-

ment rests on 8 U.S.C. 1252(a)(2)(D), which provides:

Nothing in subparagraph (B) or (C) [of 8 U.S.C.

1252(a)], or in any other provision of this chapter

(other than this section) which limits or eliminates

judicial review, shall be construed as precluding re-

view of constitutional claims or questions of law

19

raised upon a petition for review filed with an appro-

priate court of appeals in accordance with this sec-

tion.

[bid.

Section 1252(a)(2)(D) does not apply here. By its

plain text, Section 1252(a)(2)(D) provides a rule of con-

struction for certain provisions of the INA that “limit[]

or eliminate|[] judicial review.” 8 U.S.C. 1252(a)(2)(D).

Denials of sua sponte reopening are not made unre-

viewable due to a provision in Section 1252(a) or else-

where in Chapter 12 of Subchapter II of Title 8. In-

stead, they are unreviewable as committed to agency

discretion by law, because the regulations allowing the

Board to reopen or reconsider a case on its own motion

create no privately enforceable right and because there

are no judicially manageable standards to evaluate the

agency’s exercise of its discretion. See pp. 11-16, supra.®

Because Section 1252(a)(2)(D) is inapplicable here by its

terms, it lends no support to petitioner’s argument that

the Board’s decision not to exercise its swa sponte re-

opening discretion is judicially reviewable.’

© Although the government did cite 8 U.S.C. 1252(a)(2)(B) in its brief

to the court of appeals, the government's argument was that the

Board’s decision is unreviewable because it is committed to agency

discretion by law, not because review is precluded under Section

1252(a)(2)(B) or any other portion of the INA. See Gov’t C.A. Br. 12-13.

" Petitioner’s argument that constitutional and legal claims are re-

viewable has been premised entirely on Section 1252(a)(2)(D). See Pet.

C.A. Resp. to Mot. to Dismiss 3, 8-9. Petitioner also cites (Pet. 26)

Webster v. Doe, 486 U.S. 592, 603 (1988), for the proposition that Con-

gress must be clear in foreclosing judicial review of constitutional

claims. But petitioner has not been denied judicial review of any

constitutional or statutory claims in connection with his removal order:

judicial review was available at the time of his original removal order,

and if he had raised them in his challenge to the Board’s decision or in

20

Moreover, the very nature of sua sponte reopening

makes it unreviewable, and that does not change based

on the types of claims the alien presents. The Board

may choose not to reopen a case for a variety of reasons,

and the Board is not required to explain why it does not

exercise its discretionary swa sponte reopening author-

ity. Although the Board often does give reasons for such

a decision for the benefit of the parties, the Board’s deci-

sion to do so should not then make its decision subject to

judicial review. If the courts were to hold that the

reviewability of decisions not to reopen a case sua

sponte turned on the reasons the Board gave for such

decisions, it would create a substantial disincentive for

the Board to explain those rulings for the benefit of the

parties. For that reason as well, the court of appeals

was correct to find petitioner’s claim unreviewable.

2. Contrary to petitioner’s contention (Pet. 12-17),

the decision below does not conflict with any decisions

from other circuits regarding whether decisions not to

reopen a case sua sponte are judicially reviewable.

a. The courts of appeals have unanimously held that

the Board’s decision whether to reopen proceedings sua

sponte is unreviewable because it is committed to agency

discretion by law. See, e.g., Luis v. TNS, 196 F.3d 36, 40

(ist Cir. 1999); Ala v. Gonzales, 448 F.3d 515, 518

(2d Cir. 2006) (per curiam); Calle-Vujiles v. Ashcroft,

320 F.3d 472, 474-475 (3d Cir. 2003); Mosere v.

Mukasey, 552 F.3d 397, 401 (4th Cir.), cert. denied, 130

S. Ct. 137 (2009); Enriquez-Alvarado v. Ashcroft, 371

F.3d 246, 248-250 (5th Cir. 2004); Barry v. Mukasey, 524

F.3d 721, 724 (6th Cir. 2008); Palch v. Ashcroft, 353 F.3d

a timely motion to reopen, he could have obtained judicial review of

them.

21

585, 586 (7th Cir. 2003); Tamenut, 521 F.3d at 1004;

Ekimian v. INS, 308 F.3d 1153, 1159 (9th Cir. 2002);

Belay-Gebru v. INS, 327 F.3d 998, 1000-1001 (10th Cir.

2003); Lenis, 525 F.3d at 1294. This Court recognized

this unanimity in Kucana. See 130 S. Ct. at 839 n.18

(noting that 11 courts of appeals had “held that such

decisions are unreviewable because swa sponte reopen-

ing is committed to agency discretion by law, see

5 U.S.C. § 701(a)(2)”). Petitioner acknowledges it as

well. See Pet. 12, 20.

b. There is no disagreement in the courts of appeals

regarding petitioner’s first argument, which is that all

decisions not to reopen a case sua sponte are judicially

reviewable after Kucana. All of the courts of appeals

that have addressed the issue post-Kucana—like all of

the courts of appeals that had addressed the issue prior

to Kucana—have adhered to the view that denials of swa

sponte reopening are unreviewable. See Pet. App. 15a-

16a; Pllumi v. Attorney Gen.. No. 09-4454, 2011 WL

1278741, at *2 n.6 (8d Cir. Apr. 6, 2011); Sharma v.

Holder, 633 F.3d 865, 874 (9th Cir. 2011); Mejza-

Hernandez v. Holder, 633 F.3d 818, 823-824 (9th Cir.

2011); Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010)

(per curiam), petition for cert. pending, No. 10-1030

(filed Feb. 14, 2011); Ochoa v. Holder, 604 F.3d 546, 549

n.3 (8th Cir. 2010), petition for cert. pending, No. 10-920

(filed Jan. 18, 2011); Ozeiry v. Attorney Gen., 400 Fed.

Appx. 647, 649-650 (3d Cir. 2010) (per curiam) (unpub-

lished); Gashi v. Holder, 382 Fed. Appx. 21, 22-23 (2d

Cir. 2010) (unpublished); Jaimes-Aguirre v. United

States Att’y Gen., 369 Fed. Appx. 101, 103 (11th Cir.

2010) (per curiam) (unpublished). That is not surprising,

because the Kucana Court “express[ed] no opinion on

whether federal courts may review the Board’s decision

not to reopen removal proceedings sua sponte,” 130

S. Ct. at 839 n.18, and because Kucana concerned a mat-

ter of statutory interpretation, not the question whether

an agency action was committed to agency discretion by

law. There is, accordingly, no court that agrees with pe-

titioner’s primary argument about the effect of Kucana

on the courts’ unanimous view that Board decisions not

to reopen a case sua sponte are committed to agency

discretion by law.

ec. Petitioner likewise has not established any dis-

agreement in the circuits on his second argument, which

is the decision not to reopen a case sua sponte becomes

reviewable when an alien raises a “constitutional claim”

or “question of law.” As an initial matter, the court of

appeals did not address 8 U.S.C. 1252(a)(2)(D), the stat-

utory provision upon which petitioner relies for his argu-

ment that “constitutional claims” and “questions of law”

are reviewable. The court held that denials of sua

sponte reopening are unreviewable based on the ratio-

nale that they are committed to agency discretion by

law, and it did not discuss whether that rationale admits

to exceptions when an alien raises a constitutional claim

or question of law. Pet. App. 15a-16a. Although peti-

tioner described his claims as raising constitutional

claims or questions of law, so that he could rely on

8 U.S.C. 1252(a)(2)(D), and the court noted this argu-

ment, see Pet. App. 7a, the court did not analyze Section

1252(a)(2)(D) or address whether it creates any excep-

tion to the general rule of unreviewability. For that rea-

son, even if there were disagreement in the courts of

appeals regarding the reviewability of Board decisions

not to reopen a case sua sponte where the alien raised a

constitutional or legal claim, this case would be a poor

vehicle in which to consider it.

23

In any event, petitioner has not established that

there is any disagreement in the courts of appeals re-

garding whether denials of sua sponte reopening are

reviewable when the alien raises a constitutional claim

or question of law. Several of the cases petitioner cites

do not address sua sponte reopening at all; they address

other contexts. See Rosario v. Holder, 627 F.3d 58, 61-

62 (2d Cir. 2010) (although court lacks jurisdiction to

review denial of alien’s application for cancellation of

removal under 8 U.S.C. 1252(a)(2)(B), review of consti-

tutional claims and questions of law is permitted by

8 U.S.C. 1252(a)(2)(D)); Argueta v. Holder, 617 F.3d 109,

111-112 (2d Cir. 2010) (same); Cardoso-Tlaseca v. Gon-

zales, 460 F.3d 1102, 1106-1107 (9th Cir. 2006) (address-

ing whether the Board has the authority to grant a mo-

tion to reopen filed by an alien who has departed the

United States in light of the departure bar in 8 C.F.R.

1003.2(d)); Mendiola v. Holder, 585 F.3d 1303, 1309-

1310 (10th Cir. 2009) (same); Bernal-Vallejo v. INS, 195

F.3d 56, 63-64 (1st Cir. 1999) (in the context of a denial

of a request for suspension of deportation, court stated

that despite a statutory jurisdictional bar, the alien

could obtain review of a constitutional claim, but that the

alien did not raise a colorable constitutional claim). That

courts may consider constitutional or legal questions

raised in other contexts does not bear on whether courts

may consider such claims in the unique context of a

Board decision not to exercise its swa sponte reopening

authority.®

8

Petitioner also relies on one decision that is unpublished and non-

precedential; this decision cannot create the type of disagreement in

published decisions that would warrant this Court’s review. See Nawaz

v. Holder, 314 Fed. Appx. 736, 737 (5th Cir. 2009) (unpublished).

24

Of the remaining decisions petitioner cites (Pet. 13-

15), none of them directly addressed whether Section

1252(a)(2)(D) permits judicial review of legal or constitu-

tional challenges to the Board’s decision not to reopen a

case sua sponte. For example, in Mosere v. Mukasey,

supra, the court of appeals stated that decisions not to

reopen sua sponte are unreviewable, but like the deci-

sion below, the court said nothing about whether there

should be an exception for challenges that raise “ques-

tions of law,” and it did not address 8 U.S.C.

1252(a)(2)(D), the provision upon which petitioner relies.

See 552 F.3d at 400-401. The same is true of Belay-

Gebru v. INS, supra, where the Tenth Circuit held that

it could not “consider [the alien’s] claim that the [Board]

should have exercised its swa sponte power to reopen his

case.” 327 F.3d at 1000. The court did not state any

exception to that rule or discuss Section 1252(a)(2)(D).

Cruz v. Attorney General of U.S., 452 F.3d 240 (8d

Cir. 2006), considered unique circumstances in which the

court could not determine whether it had jurisdiction to

review the Board’s decision in light of 8 U.S.C.

1252(a)(2)(C), which precludes review of certain deci-

sions concerning criminal aliens; the court “remand[ed]

th[e] case to the [Board] to give it the opportunity to”

address a preliminary question about the alien’s prior

conviction and “to decide, based on the outcome of this

analysis, whether it should exercise its swa sponte au-

thority to reopen [the alien’s] case.” 452 F.3d at 242-

243, 248-249. Although the court recognized that it gen-

erally “lack[s] jurisdiction to review [Board] decisions

not to reopen proceedings swa sponte” because “there is

no standard governing the agency’s exercise of discre-

tion,” it did not rule on whether the particular claim at

issue was reviewable because it remanded the case to

29

the Board for clarification. Jd. at 249-250.° In Cevilla v.

Gonzales, 446 F.3d 658, 662-663 (2006), the Seventh Cir-

cuit held that the Board’s determination that an alien

was ineligible for cancellation of removal did not violate

due process. The court’s discussion of jurisdiction in

that case was premised upon a reading of 8 U.S.C.

1252(a)(2)(B) that this Court rejected in Kucana, and

the court did not decide the question presented here.

446 F.3d at 660-661.

In Tamenut v. Mukasey, supra, the court held that

“the [Board’s] decision whether to reopen proceedings

on its own motion is committed to agency discretion by

law.” 521 F.3d at 1004. The court suggested in passing

that it “generally do[es] have jurisdiction over any

eolorable constitutional claim,” but the court did not

explain the legal basis for that suggestion or discuss

Section 1252(a)(2)(D), and the suggestion was dicta be-

cause the court concluded that the alien did not raise

any colorable constitutional claim. Jd. at 1004-1005.

Lenis v. United States Attorney General, supra, is simi-

lar: after the court of appeals held that the Board’s de-

cision not to reopen a case sua sponte is unreviewable,

525 F.3d at 1292-1294, it noted that “an appellate court

may have jurisdiction over constitutional claims related

to the [Board’s] decision not to exercise its sua sponte

° Pllumi v. Attorney General of United States, supra, is similar: the

Third Circuit remanded to the Board because it could not tell whether

the Board had denied sua sponte reopening based on an “incorrect legal

premise.” 2011 WL 1278741, at *3. The court stated that although

decisions whether to reopen a case sua sponte are “are committed to

the unfettered discretion of the [Board],” the court may “recogniz/e]

when the [Board] has relied on an incorrect legal premise” and “remand

to the [Board] so it may exercise its authority against the correct legal

background.” /d. at *2-*3 (internal quotation marks omitted). The

court did not discuss Section 1252(aX2)(D).

26

power,” but then decided that it had “no occasion to ex-

amine that question” because “no constitutional claim

[wa]s raised,” 2d. at 1294 n.7.

Finally, in Luzs v. INS, supra, the court of appeals

held (in the context of a motion to reconsider) that “the

decision of the [Board] whether to invoke its sua sponte

authority is committed to its unfettered discretion”; “the

very nature of the claim renders it not subject to judicial

review” and it “is not subject to review by this court.”

196 F.3d at 40-41. The court then addressed the alien’s

contention that the Board’s refusal to grant her motion

to reconsider her case violated her due process rights

and found it “frivolous.” Jd. at 41. Although the court

stated that it “ha[d] jurisdiction” to consider that claim,

ibid., it did not qualify its holding that denials of sua

sponte reopening are unreviewable, and (as particularly

relevant here) it did not rely upon, or even mention,

8 U.S.C. 1252(a)(2)(D)."°

Because none of the decisions petitioner cites either

expressly adopted or expressly rejected his argument

that Section 1252(a)(2)(D) allows judicial review of legal

or constitutional challenges to a decision not to reopen

a case sua sponte, there is no disagreement in the cir-

cuits warranting this Court’s review.

3. This case would present a particularly poor vehi-

cle to consider the reviewability of Board decisions not

to reopen a case sua sponte, because all of petitioner’s

arguments in his motion suggesting sua sponte reopen-

ing could have been presented to the IJ or the Board in

'° The only authority the court cited for the proposition that the

alien’s due process claim was reviewable was Bernal-Vallejo v. INS,

supra, a case addressing denial of a request for suspension of deporta-

tion, not a decision of the Board not to reopen a case sua sponte. See

p. 23, supra.

27

his original removal proceedings. In his removal pro-

ceedings, petitioner affirmatively conceded that he is

removable as charged, see Pet. App. 5a; A.R. 140-141;

see also Pet. 4, and sought only discretionary cancella-

tion of removal, Pet. App. 5a; A.R. 207-214. Petitioner

did not argue that the IJ failed to provide him with a list

of low-cost attorneys, that the IJ should not have pro-

ceeded with his case (after numerous continuances)

when petitioner did not have a lawyer, or that the IJ

should have determined whether other forms of discre-

tionary relief were available. Then, long after his re-

moval order became final, petitioner filed a motion re-

questing sua sponte reopening, in which he abandoned

his request for cancellation of removal and sought to

collaterally attack his original removal proceedings. Pe-

titioner did not establish that any of his new arguments

was unavailable at the time of his original proceeding.

Pet. App. 44a.

The fact that petitioner did not present any new

claims that were previously unavailable is relevant for

two reasons. First, it underscores the reasonableness of

the Board’s decision not to reopen petitioner’s immigra-

tion proceedings sua sponte. The Board exercises its

discretionary authority to reopen sua sponte “spar-

ingly,” “as an extraordinary remedy reserved for truly

exceptional situations.” Jn re G-D-, 22 I. & N. Dec.

1132, 1133-1134 (B.I.A. 1999). Petitioner’s case does not

qualify, because he could have raised all of his claims in

his initial removal proceeding, but he did not do so, and

he did not provide an excuse for his failure to raise these

claims. There are strong reasons not to allow an alien to

raise this type of collateral attack on final immigration

proceedings long after they are completed, especially

where (as here) the alien raises claims on which he could

28

have developed a factual record (such as his allegation

that he did not receive a list of low-cost legal providers)

or the parties could have developed their legal argu-

ments (such as his claim that he was not removable)."’

Because this case clearly does not raise the types of ex-

ceptional circumstances in which the Board has re-

opened cases sua sponte, petitioner’s claims would fail

even if they were reviewable.

Second, the fact that petitioner could have raised al]

of his claims in his initial removal proceeding under-

scores why challenges such as this to the Board’s deci-

sion not to reopen a case sua sponte are unreviewable.

As this Court explained in JCC v. Brotherhood of Loco-

motive Engineers, 482 U.S. 270 (1987), there is a funda-

mental difference between seeking reopening from an

agency based on “‘new evidence’ or ‘changed circum-

stances’ that rendered the agency’s original order inap-

propriate,” and seeking reconsideration or rehearing

based simply on assertions of error in the original deci-

sion. /d. at 278-282. The Court explained that there is

a “tradition of nonreviewability [that] exists with regard

to refus[ing] to reconsider for material error, by agen-

cies as by lower courts,” which the Administrative Pro-

cedure Act, through 5 U.S.C. 701(a)(2), “was meant to

preserve,” and the Court was “confirmed in that view by

the impossibility of devising an adequate standard of

review for such agency action.” 482 U.S. at 282. Be-

"' Although the court of appeals suggested in passing that the alleged

failure to provide a list of low-cost legal providers “likely violated [peti-

tioner’s] right to due process,” Pet. App. 24a, the court did not explain

the legal basis for that conclusion, and it simply accepted petitioner’s

assertion that he did not receive such a list, despite the fact that the IJ

offered petitioner such a list on the record, and petitioner stated that he

understood his rights, see A.R. 133-134.

29

cause petitioner’s suggestion of swa sponte reopening

was simply an effort to relitigate his prior removal or-

der—where he attempted to raise arguments that he

either forfeited or waived in his initial proceeding—the

case for judicial review is particularly weak. Further

review is therefore unwarranted.

CONCLUSION

The petition fur a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

TONY WEST

Assistant Attorney General

DONALD E. KEENER

ROBERT N. MARKLE

Attorneys

MAY 2011