17‐3827
Andrews v. Barr
BIA
A036 706 672
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 22nd day of January, two thousand
twenty.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
Churchill Leonard Spencer Andrews,
AKA Churchill Lenard Andrews,
Petitioner,
v. 17‐3827
William P. Barr, United States Attorney
General,
Respondent.
_____________________________________
FOR PETITIONER: DAVID A. SCHNITZER (David Debold, on the
brief), Gibson, Dunn & Crutcher LLP,
Washington, D.C.
FOR RESPONDENT: RACHEL BROWNING, Trial Attorney, Office of
Immigration Litigation, (Chad A. Readler,
Acting Assistant Attorney General; Claire L.
Workman, Senior Litigation Counsel, on the
brief), United States Department of Justice,
Washington, D.C.
FOR AMICUS CURIAE: Trina Realmuto, Kristin Macleod‐Ball,
American Immigration Council, Brookline,
MA.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED.
I.
Petitioner Churchill Leonard Spencer Andrews, a native and citizen of
Guyana, seeks review of an October 25, 2017, decision of the BIA denying his
motion to reopen and reconsider. In re Churchill Leonard Spencer Andrews, No.
A036 706 672 (B.I.A. Oct. 25, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
We held in Harbin v. Sessions that Andrews’s statute of conviction, fifth‐
degree criminal sale of a controlled substance under New York Penal Law
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(“NYPL”) § 220.31, is not a drug trafficking aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(B) because there was no categorical match between New
York’s “controlled substance” offenses and federal controlled substance offenses
given that New York drug schedules are broader than the federal schedules. 860
F.3d 58, 68 (2d Cir. 2017). Based on the reasoning in Harbin, NYPL § 220.31 is also
not a removable controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i)
because that provision references the same federal drug schedules, 8 U.S.C.
§ 1101(a)(43)(B), at issue in Harbin. Because Andrews’s removal pre‐dated
Harbin, the issue before us is whether the BIA abused its discretion by declining to
reopen Andrews’s removal proceedings. As discussed below, we remand for
further consideration of Andrews’s motion.
II.
We review the agency’s denial of a motion to reconsider or reopen for abuse
of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168‐69 (2d Cir. 2008)
(motion to reopen); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.
2006) (motion to reconsider). “An abuse of discretion may be found in those
circumstances where the Board’s decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say, where the Board
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has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of
Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
The BIA did not adequately explain its decision that equitable tolling was
not warranted, particularly considering its inconsistent decisions in apparently
similar cases. To the extent that Andrews sought statutory reopening or
reconsideration, the departure bar does not preclude review by the BIA. See Luna
v. Holder, 637 F.3d 85, 102 (2d Cir. 2011) (holding that departure bar in 8 U.S.C. §
1003.2(d) does not limit the BIA’s consideration of statutory motions to reopen but
recognizing that it terminates jurisdiction over regulatory motions to reopen sua
sponte). Andrews conceded that his motion was untimely as to the BIA’s October
2011 decision but sought equitable tolling, arguing that he had been diligently
pursuing his rights and extraordinary circumstances prevented timely filing of his
motion. See Holland v. Florida, 560 U.S. 631, 649 (2010) (stating that tolling is
appropriate when a petitioner “(1) . . . has been pursuing his rights diligently, and
(2) . . . some extraordinary circumstance stood in his way”). The BIA, in a single
line, wrote that Andrews did not show that he was entitled to equitable tolling; it
provided no explanation. The lack of any “rational explanation” as to why
Andrews did not merit equitable tolling is an abuse of discretion. Ke Zhen Zhao,
265 F.3d at 93; see also Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite
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our generally deferential review of IJ and BIA opinions, we require a certain
minimum level of analysis from the IJ and BIA opinions denying asylum, and
indeed must require such if judicial review is to be meaningful.”).
As Andrews points out, absent any explanation, the BIA’s decision appears
inconsistent with its ruling granting reopening in similar circumstances. For
example, just days after denying Andrews’ motion, the BIA granted reopening to
another petitioner based on Harbin, even though the motion to reconsider was
untimely in that case as well. See Petitioner’s Br. at 20‐21 (citing In Re: [Redacted]
(BIA Oct. 31, 2017)), Add. 14. This “application of agency standards in a plainly
inconsistent manner across similar situations evinces such a lack of rationality as
to be arbitrary and capricious,” i.e., an abuse of discretion. Ke Zhen Zhao, 265 F.3d
at 95.
III.
Andrews also requested sua sponte reopening or reopening nunc pro tunc.
We generally lack jurisdiction to review the agency’s “entirely discretionary”
decision declining to reopen sua sponte. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
2006). But we may remand if, in denying sua sponte reopening, the BIA
“misperceived the legal background and thought, incorrectly, that a reopening
would necessarily fail.” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). That
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means we can review “questions relating to the BIA’s understanding of the
regulation governing the scope of this authority, which present interpretive issues
that are squarely within our province.” Xue Yong Zhang v. Holder, 617 F.3d 650,
667 n.16 (2d Cir. 2010).
The BIA was correct that it did not have jurisdiction to reopen sua sponte
because Andrews has already been removed. 8 C.F.R. § 1003.2(d); Xue Yong
Zhang, 617 F.3d at 655‐65 (upholding departure bar with respect to regulatory
reopening). It did not, however, address Andrews’s argument that it could
reopen nunc pro tunc as an equitable matter because of its prior error of finding
Andrews removable. See Xue Yong Zhang, 617 F.3d at 665 (stating that it is an
open question “whether the doctrine of nunc pro tunc is available as a means of
providing equitable relief where the BIA is divested of jurisdiction by the
departure bar to consider an alien’s motion to reopen”). The BIA’s position with
respect to the scope of its discretionary authority raises a question of law that we
can review. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006)
(providing that a question of law “arise[s] where a discretionary decision . . . was
made without rational justification or based on a legally erroneous standard”); see
also Xue Yong Zhang, 617 F.3d at 667 n.16. Because the BIA did not consider the
nunc pro tunc argument in denying Andrews’s motion, there is nothing for us to
6
review; we therefore remand for consideration by the BIA in the first instance. See
Poradisova, 420 F.3d at 77; cf. Vela‐Estrada v. Lynch, 817 F.3d 69, 72 (2d Cir. 2016)
(remanding when it was not clear whether BIA considered petitioner’s motion to
reopen).
For the foregoing reasons, the petition for review is GRANTED, the BIA’s
denial of reopening is VACATED, and the case is REMANDED for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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