[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 5, 2008
No. 07-13629 THOMAS K. KAHN
________________________ CLERK
Agency Nos. A95-220-147
A95-220148
CLARA INES LENIS,
ORLANDO HERRERA,
TATIANA HERRERA,
MARLON ALEXIS HERRERA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,* District Judge.
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
MARCUS, Circuit Judge:
Petitioners Clara Ines Lenis, her husband Orlando Herrera, and their two
children Tatiana Herrera and Marlon Herrera (collectively, “Lenis”), petition for
review of the Board of Immigration Appeals’ (“BIA’s”) decision denying their
motion for a sua sponte reopening of their case, pursuant to 8 C.F.R. § 1003.2(a).1
On appeal, Lenis claims that the BIA abused its discretion in denying a request to
use its sua sponte powers to reopen the underlying proceedings essentially because
the agency had issued a precedential decision changing the meaning of the term
“particular social group” under the asylum laws. After thorough review, we
dismiss the petition for lack of jurisdiction.
The dispositive issue is whether we have jurisdiction to review the BIA’s
denial of a motion to reopen the underlying immigration proceedings based on its
sua sponte authority. We are, of course, always required to address whether we
have subject-matter jurisdiction. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
956 (11th Cir. 2005).
This kind of challenge -- asking whether the BIA abused its discretion by
refusing to reopen proceedings under 8 C.F.R. § 1003.2(a) -- has previously been
before this Court in Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999). However, Anin
1
This regulation, 8 C.F.R. § 1003.2(a), was formerly located at 8 C.F.R. § 3.2(a). For
purposes of clarity, we will cite to its current location throughout the opinion.
2
did not squarely address whether we have jurisdiction in this situation, and in fact,
the parties here agree that Anin does not resolve the matter.2 Today, however, the
government contends that we are without jurisdiction. It is, therefore, an issue of
first impression that we must resolve.3
Ten courts of appeals have held that they have no jurisdiction to hear an
appeal of the BIA’s denial of a motion to reopen based on its sua sponte authority.
See Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999); Ali v. Gonzales, 448 F.3d 515,
518 (2d Cir. 2006) (per curiam); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75
(3d Cir. 2003); Doh v. Gonzales, 193 F. App’x 245, 246 (4th Cir. 2006) (per
curiam) (unpublished); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th
2
Indeed, the jurisdictional question was never raised in Anin. Rather, the parties
essentially addressed the merits of whether the BIA abused its discretion under the statute, 8 U.S.C.
§ 1252b(c)(3)(A), by denying Anin’s motion to rescind. Petitioner Anin alternatively suggested that
the BIA also abused its discretion by not reopening the case sua sponte pursuant to 8 C.F.R. §
1003.2(a), and in so doing, Anin assumed that the Court had jurisdiction to review such a decision.
Notably, the government never responded to this argument, and at no point did it so much as suggest
that the Court had no jurisdiction to review a BIA decision under 8 C.F.R. § 1003.2(a). Because the
jurisdictional question plainly was not raised, “the question is an open one.” Fed. Election Comm’n
v. NRA Political Victory Fund, 513 U.S. 88, 97 (1994) (“The jurisdiction of this Court was
challenged in none of these actions, and therefore the question is an open one before us.”).
3
Since Anin, this Court’s unpublished opinions have reached differing conclusions about
whether we have jurisdiction to review the BIA’s decision not to reopen based on its sua sponte
authority. Compare Tofade v. U.S. Att’y Gen., 236 F. App’x 526, 528 (11th Cir. 2007)
(unpublished) (holding that this Court lacks jurisdiction), Lushaj v. U.S. Att’y Gen., 197 F. App’x
881, 885 (11th Cir. 2006) (unpublished) (same), and Umana v. U.S. Att’y Gen., 176 F. App’x 15,
17 (11th Cir. 2006) (unpublished) (same), with Finlayson-Green v. U.S. Att’y Gen., 228 F. App’x
919, 921 (11th Cir.) (unpublished) (holding that this Court has jurisdiction), cert. denied, 128 S. Ct.
733 (2007), Banmally v. U.S. Att’y Gen., 199 F. App’x 936, 937 n.1 (11th Cir. 2006) (unpublished)
(same), and Rahman v. U.S. Att’y Gen., 187 F. App’x 962, 965-66 (11th Cir. 2006) (unpublished)
(same). Because these opinions were unpublished, however, they have no precedential value. See
11th Cir. Rule 36-2; United States v. Tamari, 454 F.3d 1259, 1262 n.4 (11th Cir. 2006).
3
Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004); Pilch v.
Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Tamenut v. Mukasey, __ F.3d __,
2008 WL 637617 (8th Cir. 2008) (en banc) (per curiam); Ekimian v. INS, 303 F.3d
1153, 1159 (9th Cir. 2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.
2003).4 We agree with our sister circuits and join them in holding that we have no
jurisdiction to entertain this kind of appeal.
It is undisputed that under 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). The “committed to agency discretion” exception is a “very
narrow exception” that “is applicable in those rare instances where ‘statutes are
drawn in such broad terms that in a given case there is no law to apply.’” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S.Rep.
No. 79-752, at 26 (1945)), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99, 105 (1977). The Supreme Court has since explained that “review is not to
be had if the statute is drawn so that a court would have no meaningful standard
against which to judge the agency’s exercise of discretion.” Heckler v. Chaney,
4
In an earlier decision, the Ninth Circuit held that it had jurisdiction over a BIA decision
under 8 C.F.R. § 1003.2(a). See Socop-Gonzalez v. I.N.S., 208 F.3d 838, 844 (9th Cir.), vacated
by 229 F.3d 860 (9th Cir. 2000). But this decision was vacated and when heard en banc, the court
did not address the issue. See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1183 (9th Cir. 2001) (en
banc) (“Because we hold that the BIA should have equitably tolled the ninety-day filing period, we
do not reach the question whether the BIA should have exercised its sua sponte power to reopen.”).
Moreover, the Ninth Circuit, after vacating Socop, ultimately held in Ekimian that it had no
jurisdiction.
4
470 U.S. 821, 830 (1985).
Neither the statute nor the regulation at issue today provides any
“meaningful standard against which to judge the agency’s exercise of discretion.”
Indeed, no statute expressly authorizes the BIA to reopen cases sua sponte; rather,
the regulation at issue derives from a statute that grants general authority over
immigration and nationalization matters to the Attorney General, and sets no
standard for the Attorney General’s decision-making in this context. See 8 U.S.C. §
1103(g)(2).5 Likewise, while the regulation itself, 8 C.F.R. § 1003.2(a), expressly
gives the BIA discretion to sua sponte reopen cases, it provides absolutely no
standard to govern the BIA’s exercise of its discretion.6 As we observed in Anin:
5
The statute provides:
The Attorney General shall establish such regulations, prescribe such forms of bond,
reports, entries, and other papers, issue such instructions, review such administrative
determinations in immigration proceedings, delegate such authority, and perform
such other acts as the Attorney General determines to be necessary for carrying out
this section.
8 U.S.C. § 1103(g)(2).
6
The regulation provides:
The Board may at any time reopen or reconsider on its own motion any case in
which it has rendered a decision. A request to reopen or reconsider any case in which
a decision has been made by the Board, which request is made by the Service, or by
the party affected by the decision, must be in the form of a written motion to the
Board. The decision to grant or deny a motion to reopen or reconsider is within the
discretion of the Board, subject to the restrictions of this section. The Board has
discretion to deny a motion to reopen even if the party moving has made out a prima
facie case for relief.
8 C.F.R. § 1003.2(a).
5
The provision reposes very broad discretion in the BIA “to reopen or
reconsider” any motion it has rendered at any time or, on the other
hand, “[to] deny a motion to reopen.” [8 C.F.R. § 1003.2(a).] The
discretion accorded in this provision is so wide that “even if the party
moving has made out a prima facie case for relief,” the BIA can deny
a motion to reopen a deportation order. Id. No language in the
provision requires the BIA to reopen a deportation proceeding under
any set of particular circumstances. Instead, the provision merely
provides the BIA the discretion to reopen immigration proceedings as
it sees fit.
188 F.3d at 1279; see also Tamenut, 2008 WL 637617, at *3 (“The use of
permissive and discretionary language in the first sentence of § 1003.2(a) further
supports the inference that the agency action is unreviewable.”);
Enriquez-Alvarado, 371 F.3d at 249-250 (“The permissive, ‘may,’ indicates that
reopening the case is not mandatory, but rather within the discretion of the IJ. That
is, it implies that the IJ is under no obligation to reopen a case. Were the presence
of any circumstance sufficient to compel an IJ to reopen the case, then the plain
meaning of ‘may’ would be contravened.”) (citation omitted). Thus, as the Eighth
Circuit has recently concluded, “[t]he regulation itself, 8 C.F.R. § 1003.2(a),
provides no guidance as to the BIA’s appropriate course of action, sets forth no
factors for the BIA to consider in deciding whether to reopen sua sponte, places no
constraints on the BIA’s discretion, and specifies no standards for a court to use to
cabin the BIA’s discretion.” Tamenut, 2008 WL 637617, at *3.
For these reasons, we hold that the BIA’s decision whether to reopen
6
proceedings on its own motion pursuant to 8 C.F.R. § 1003.2(a) is committed to
agency discretion by law. We are, therefore, constrained to conclude that we lack
jurisdiction to review the BIA’s decision in this case.7
Accordingly, the petition for review must be and is DISMISSED.
7
We note, in passing, that an appellate court may have jurisdiction over constitutional
claims related to the BIA’s decision not to exercise its sua sponte power. As the Eighth Circuit
observed, “[a]lthough this court lacks jurisdiction over Tamenut’s challenge to the BIA’s decision
not to reopen sua sponte, we generally do have jurisdiction over any colorable constitutional claim.”
Tamenut, 2008 WL 637617, at *4 (citations omitted). However, no constitutional claim is raised
today, and we, therefore, have no occasion to examine that question.
7