September 17, 2015 Articles

Federal Appeals Courts Must Exercise Jurisdiction over Decisions of the BIA

The Supreme Court's decision in Mata v. Lynch continues immigration law's march into the mainstream of American law.

By Kele Onyejekwe

A United States court of appeals always has jurisdiction to consider a final order of the Board of Immigration Appeals (BIA) denying an immigrant’s motion to reopen. Reyes Mata v. Lynch, 135 S. Ct. 2150, 2153 (2015) [login required]. The BIA is the final administrative body interpreting and applying immigration laws. According to the Supreme Court, the appellate court has no choice: “[W]hen a federal court has jurisdiction, it has a virtually unflagging obligation to exercise it.” Id. at 2156 (internal quotations omitted). This is true whether the denial is based on a request for equitable tolling because of an extraordinary reason, such as ineffective assistance of counsel, or on any other reason.

In Mata, the Supreme Court emphasized that a court’s review power over a decision of the BIA is distinct from its power to affirm, reverse, or remand on the merits. “The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper).” The Fifth Circuit confused these two distinct jurisdictional bases and held that it lacked jurisdiction over this case. Therefore, the Supreme Court reversed its decision. Id. at 2156–57. Unlike the Fifth Circuit, 10 other courts of appeals, presented with the same question, exercised jurisdiction.

Immigration Procedures Background
The BIA was created by the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., the nation’s primary immigration code. The INA and its implementing regulations detail how an immigrant may be removed from the country. A removal (formerly “deportation”) is initiated at the immigration court, the trial court of the immigration process. The charging document, stating the grounds on which the Department of Homeland Security seeks to remove the immigrant, is called a notice to appear. An immigration judge conducts the initial proceedings and can order removal (i.e., the immigrant lost and must go home) or grant relief (the immigrant wins and stays in the United States). Cancelation of removal is one form of relief. 8 U.S.C. § 1229b(b)(1). It entitles an immigrant who has unlawfully entered the United States and resided here for over 15 years in good behavior to admission as a lawful permanent resident. A conviction for a domestic violence offense is one of many circumstances that can be disqualifying. 8 U.S.C. § 1227(a)(2)(E)(i). If the judge orders removal, the immigrant appeals that decision to the BIA.

There are 260 immigration judges and 58 immigration courts. U.S. Dep’t of Justice, Office of the Chief Immigration Judge. There is one BIA. There are 15 board members, including the chairman and vice chairman. U.S. Dep’t of Justice, Board of Immigration Appeals. The immigration courts and the BIA come under the Executive Office of Immigration Review, an agency of the Department of Justice, created under authority delegated from the attorney general of the United States. Thus, the attorney general can overrule the board, although this is not common. See, e.g., Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015). Appeals from the BIA are heard at the United States court of appeals for the judicial circuit having jurisdiction over the state of the immigration court. An alien who is ordered removed “has a right to file one motion” with the immigration judge or board to “reopen his or her removal proceedings.” 8 U.S.C. § 1229a(c)(7)(A). The motion to reopen “shall be filed within 90 days” of the final removal order. 8 U.S.C. § 1229a(c)(7)(C)(i). In addition, the BIA may reopen removal proceedings on its own motion at any time. 8 C.F.R. § 1003.2(a) (2015).

The Facts
Noel Reyes Mata, a Mexican citizen, entered the United States 15 years ago. In 2010, he was convicted of assault upon a person with whom he had a “dating relationship,” under the Texas Penal Code. The Department of Homeland Security initiated removal proceedings against him. Mata conceded his removability but informed the judge that he would seek cancellation of removal. See Mata v. Holder, 2014 U.S. Briefs 185, 5 (2015). The department opposed it because of Mata’s conviction. The immigration judge ordered Mata removed because he was present in the United States unlawfully and had no relief authorized by law. That assault conviction, the judge found, was a disqualifying crime involving moral turpitude. This ruling was likely incorrect because violation of this Texas statute may include conduct that does not involve moral turpitude under the doctrine of the BIA. Matter of Silva-Trevino, 2008 BIA LEXIS 37 (B.I.A. 2008). But Mata’s counsel did not file a brief on this issue requested by the judge prior to the ruling. However, to argue this point, the case must be opened. Through his counsel, Mata filed a notice of appeal with the BIA. He checked the part of the notice of appeal form indicating that a written brief stating grounds for reversing the immigration judge’s decision would follow. But Mata filed nothing. Because no basis supported it, the BIA dismissed Mata’s appeal in September 2012.

Mata had 90 days to move the BIA to reopen this case. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2) (reopening or reconsideration before the BIA).With new counsel, but more than a 100 days later, Mata filed a motion with the BIA to reopen his case. It was his prior lawyer’s ineffective assistance that resulted in his late filing, he argued. The Department of Homeland Security opposed the motion because it came outside the 90-day statutory period. Mata argued that his motion came within the time contemplated by the INA because his first lawyer’s ineffective assistance was an “exceptional circumstance” that caused him to file outside the statutory period. The BIA reaffirmed that it had the authority to equitably toll the 90-day period in certain cases, especially those cases involving ineffective representation. In re Santa Celenia Diaz, 2009 Immig. Rptr. LEXIS 1251, 2009 WL 2981747 (B.I.A. Aug. 21, 2009).

But in Mata’s case, the board withheld its powers of equitable tolling because Mata did not show prejudice resulting from his attorney’s deficient performance. So, the BIA found Mata’s motion untimely. 8 U.S.C. § 1229a(c)(7)(C)(i) [login required]. Mata timely appealed to the United States Court of Appeals for the Fifth Circuit.

The Fifth Circuit: We Lack Jurisdiction
Mata sought equitable tolling. His previous lawyer’s ineffectiveness, according to him, created an exceptional circumstance that equitable tolling would overcome. The Fifth Circuit declined to reach the merits of Mata’s equitable-tolling claim in a two-page opinion. Reyes Mata v. Holder, 558 F. App’x 366, 367 (2014) (per curiam). There was a circuit precedent, it stated, tying its hands: Romos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). When an immigrant seeks equitable tolling before the BIA, Muksey laid out, he or she really appeals to the board’s sua sponte authority to reopen. But this authority is within the BIA’s “complete discretion.” Hence, for the court, there is no “meaningful standard against which to judge that exercise of discretion.” Mata, 558 F. App’x at 367. Therefore, the court lacked jurisdiction to review the BIA’s refusal to exercise its sua sponte power to reopen cases. Accordingly, it dismissed Mata’s appeal for lack of jurisdiction.

The Fifth Circuit’s “hands-off” thinking about jurisdiction had generally defined immigration jurisprudence for at least one century. See generally Hiroshi Motomura, “The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights,” 92 Colum. L. Rev. 1625 (1992). In fact, as the Supreme Court’s dissenting opinion sees it, the error of the Fifth Circuit “has nothing to do with its fidelity to our precedents discussing ‘the judicial obligation to exercise jurisdiction.” Mata, 135 S. Ct. at 2157–58 (Thomas, J., dissenting). For the dissent, with respect to the non-reviewability of the BIA’s sua sponte decision, the appeals court’s jurisdictional analysis was correct. Id. at 2157.

It must be said that no matter how historically defensible the Fifth Circuit’s jurisdictional analysis may be, it represents a paradigm that has passed. Since Padilla v. Kentucky, 559 U.S. 356, 360 (2010), immigration law has come, though not completely, into the mainstream of American constitutional law. Immigration is no longer on the periphery, at the say-so of an administrative agency. Ten circuit courts that exercised jurisdiction over BIA decisions in similar cases—all entered between 2000 and 2013—bear testimony to this prevailing norm. Mata,135 S. Ct. at 2154 n.1.

The Supreme Court: A Court of Appeals Has Jurisdiction
By the time this case reached the Supreme Court, the Fifth Circuit’s hands-off doctrine was moribund, if not dead. The solicitor general of the United States moved to Mata’s side. As a result, the Court appointed able counsel to defend the decision below. Id. n.2. The Supreme Court disagreed with the Fifth Circuit in no uncertain terms. “Under the INA, as under our century-old practice the reason for the BIA’s denial makes no difference to the jurisdictional issue,” wrote Justice Elena Kagan for the 8–1 majority. “Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision,” she continued. The Court based its decision in Mata on Kucana v. Holder, 558 U.S. 233, 237 (2010).

There, the court explained thelongstanding exercise of judicial review of administrative rulings on reopening motions, the text and context of § 1252(a)(2)(B), the history of the relevant statutory provisions . . . and the presumption favoring interpretations of statutes [to] allow judicial review of administrative action.” Id. at 237. It concluded that federal courts had jurisdiction over BIA decisions.

The Court further explained in Mata:

As we held in Kucana v. Holder, circuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U. S. C. §1252(a)(1); 28 U. S. C. §2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U. S. C. §1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order”). Indeed, as we explained in Kucana, courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts’ jurisdiction over BIA rulings, it left that authority in place. See 558 U. S., at 242–251, 130 S. Ct. 827, 175 L. Ed. 2d 694.

The Court continued as follows:

Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.

Mata, 135 S. Ct. 2150, 2154–55 (2015).

Mata is significant because it extends the same rights available in most circuits to immigrants in Louisiana, Mississippi, and Texas—states under the Fifth Circuit. There is no circuit split on this issue for now. As a result, our system of immigration law is more uniform and not based on the luck of an immigrant’s state of residence. Students of immigration law will notice that Mata continues immigration law’s march into the mainstream of American law. Immigration practitioners had hoped that Mata would resolve issues of equitable tolling and ineffective assistance of counsel in motions to reopen proceedings. However, the decision, which turned out to be an exercise in subject-matter jurisdiction, did not go that far, leaving those issues for another day.

Dissenting Opinion: It Is a Matter of Construing or Recharacterizing
Justice Clarence Thomas wrote an important dissent. He notes that the majority “elides an important distinction between construing a court filing and recharacterizing it.” 135 S. Ct. at 2157. “Courts routinely construe ambiguous filings to make sense out of them.” Id. However, a court should not recharacterize an unambiguous filing with a “freewheeling attitude” into what the litigant did not intend. Id. “Mata’s motion to reopen does not clearly state if Mata was invoking a statutory relief under 8 U.S.C. §1299a(c)(7)(A) or instead requesting sua sponte reopening under BIA’s inherent authority to reopen.” Id. For the dissent, the Fifth Circuit should have first decided the type of motion that was before the BIA. If it “engaged in the discretionary action of construing that ambiguous filing,” the court would not have abused its discretion. Id.

Rather, the appeals court erred, according the Justice Thomas, because it applied a “categorical rule that all motions to reopen that would be untimely under [the motion to reopen provisions] must be construed as motions for sua sponte reopening of the proceedings.” Id. Justice Thomas would have remanded the matter to the Fifth Circuit to consider, on a case-specific basis, whether Mata’s original motion to reopen was a statutory claim or an invitation for the BIA to act on its own authority. A court of appeals has jurisdiction, according to the dissent, only if the motion is grounded in statute but not in the BIA’s sua sponte authority.

An immigrant who is ordered removed and whose administrative motion to reopen is denied by the BIA because of his or her attorney’s ineffectiveness or any other reason can appeal to a federal court of appeals. That circuit court has jurisdiction and must exercise it. It is of no moment that the BIA’s decision was based on a ground completely within its discretion.

Keywords: criminal litigation, assault, Board of Immigration Appeals, immigration court, cancellation of removal, motion to reopen, ineffective assistance of counsel, equitable tolling

Kele Onyejekwe is an appellate public defender at the Office of the Territorial Public Defender, Virgin Islands. He is also a coeditor-in-chief of the Criminal Litigation Committee newsletter.

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