Kucana v. Holder, 558 U.S. __ (2010).

A motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings and federal court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916. This court has ultimately reviewed reopening decisions on numerous occasions. However, mindful of the BIA’s broad discretion in such matters, however, courts have employed a deferential, abuse-of-discretion standard of review.

Even though it is agreed that the Attorney General’s regulation, 8 CFR §1003.2(a), places the decision to grant or deny a motion to reopen within the discretion of the BIA, 8 USC § 1252(a)(2)(B)(ii) does not codify that prescription, and does not otherwise specify that reopening decisions are “in the discretion of the Attorney General.”

The BIA’s discretionary authority to act on a motion to reopen is “specified” not in a statute, but only in the Attorney General’s regulation, which instructs: “The decision to grant or deny a motion to reopen . . . 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.”

The word “under” in the jurisdiction-stripping provision at 8 USC 1252(a)(2)(B)(ii) is chameleon; it has many dictionary definitions and must draw its meaning from its context. Examining, in statutory context, the provision in which the word “under” is embedded, this court concludes that the parties’ position that “specified under this subchapter” means “specified in,” or “specified by,” the subchapter stands on firmer ground.

Both 8 USC §1252(a)(2)(A) and 8 USC §1252(a)(2)(C) depend on statutory provisions, not on any regulation, to define their scope. All the defining references are statutory; none invokes a regulation. Given 8 USC 1252(a)(2)(B)’s statutory placement, sandwiched between subsections (a)(2)(A) and (a)(2)(C), one would expect that it, too, would cover statutory provisions alone.

The proximity of clauses (i) enumeration of administrative judgments that are insulated from judicial review and (ii) a catchall provision covering “any other decision . . . the authority for which is specified under this subchapter,” and the words linking them—“any other decision”—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, this court finds, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.

This court finds significant the character of the decisions Congress enumerated in 8 USC §1252(a)(2)(B)(i), thereby insulating them from judicial review. They are substantive decisions made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. By contrast, decisions on reopening motions made discretionary by regulation are adjunct rulings: A motion to reopen is a procedural device serving to ensure that aliens are getting a fair chance to have their claims heard. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing.

If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute, moreover, Congress could easily have said so. In other provisions enacted simultaneously with 8 USC §1252(a)(2)(B)(ii), such as 8 U. S. C. §1324c(e)(2) and 8 U. S. C. §1103(a)(10), Congress expressed precisely that meaning. Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.

The history of the relevant statutory provisions corroborates this court’s determination that 8 USC §1252(a)(2)(B)(ii) does not proscribe judicial review of denials of motions to reopen.

Enacting IIRIRA in 1996, Congress transformed the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. In the same legislation, Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States. Among IIRIRA’s several proscriptions of judicial review is the one at issue, 8 USC §1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General’s discretion. Congress thus simultaneously codified the process for filing motions to reopen and acted to bar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified together with its codification of directions on filing reopening motions. From the Legislature’s silence on the discretion of the Attorney General (or his delegate, the BIA) over reopening motions, this court takes it that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen, but courts retain jurisdiction to review, with due respect, the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this important procedural safeguard designed to ensure a proper and lawful disposition of immigration proceedings where the alien’s underlying claim (for asylum) would itself be reviewable. Although adding or reformulating provisions on asylum, protection from removal, even judicial review, the REAL ID Act did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen.

Any lingering doubt about the proper interpretation of 8 U. S. C. §1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. This court has consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, this court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption and there is no such evidence in the instant case.

By defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read 8 USC §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design. This is a paramount factor in this court’s determination that federal courts have jurisdiction to review BIA’s discretion in denying motions to reopen. If the Seventh Circuit’s construction of 8 USC §1252(a)(2)(B)(ii) were to prevail, the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.

A statute affecting federal jurisdiction must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. As this court has noted, many provisions of IIRIRA were aimed at protecting from court review exercises of the Executive’s discretion. But no law pursues its purpose at all costs and the textual limitations upon a law’s scope are no less a part of its purpose than its substantive authorizations. While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so. Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review. For the reasons stated, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Hamazaspyan v. Holder, No. 05-72267 (9th Cir. Dec. 21, 2009).

The petitioner’s removal order is a final order over which this court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). This court’s review of a removal order entered in absentia is limited to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s absence from the proceeding, and (iii) whether or not the alien is removable. This court reviews the BIA’s denial of motions to reopen for abuse of discretion. The BIA’s determination of purely legal questions is reviewed de novo. Whether an immigration proceeding violates an alien’s due process rights is a purely legal issue and is reviewed de novo. Factual findings are reviewed for substantial evidence.

This court now holds that serving a hearing notice on an alien, but not on the alien’s counsel of record, is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the counsel of record.

An IJ is required to enter an in absentia removal order if the government establishes by clear, unequivocal, and convincing evidence that (1) the alien was provided statutory notice and (2) the alien is removable. An IJ may rescind his order if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or (2) of Section 1229(a) of Title 8.

Notice in accordance with paragraph (1) or (2) of section 1229(a) of Title 8 requires written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). The BIA has decided that personal service is practical for the immigration court only when the respondent is physically present before the immigration judge. Such personal service did not occur in the instant case.

The next statutory means of service is service by mail. The text of 8 U.S.C. § 1229(a)(1) and (2) is through service of mail to the alien or to the alien’s counsel of record, if any. Where possible, this court is required to give each word of a statute meaning. Does “if any” have any meaning as to whether counsel must be served? “If” means “1. in case that; granting that; supposing that . . .” Webster’s New Twentieth Century Dictionary Unabridged (2d ed. 1983). “Any” means “1. one (no matter which) of more than two . . .” Put together: in case that the alien has counsel, one of the counsels must be served. In other words, although the word “or” is disjunctive, the phrase “if any” creates a condition in the choice between serving the alien or serving his counsel. If the case is that the alien is represented by counsel of record, then the government must serve one of his counsels of record. If, however, the alien is not represented by counsel of record, then the government must serve the alien. The purpose of the word “or” in the statute is to clarify that the immigration court is not required to send notice to both the alien and the alien’s counsel of record. Therefore, this court holds that, once the alien’s counsel files an appearance before the immigration court, 8 U.S.C. § 1229 requires the government to serve an alien’s counsel of record with any document related to the alien’s removal proceedings.

If Congress had wanted to make 8 U.S.C. § 1229(a) truly disjunctive, to allow service of notice of a Notice to Appear or hearing notice on either the alien or the alien’s counsel of record,
Congress could simply have eliminated “if any.” Of course, if there is no counsel of record, one cannot be served.

There are provisions of 8 U.S.C. §§ 1229 and 1229a that might, on first glance, appear contrary to this court’s holding. Section 1229a(b)(5)(A) and § 1229(c) state written notice shall be sufficient if served on the most recent address the alien provided under § 1229(a)(1)(F). One interpretation of these provisions could be that they supersede the requirement in § 1229(a)(1) or (2) that an alien’s counsel of record must receive service. Both provisions more likely regulate only where service can be effected upon the alien, and do not eliminate the requirement of service upon the alien’s counsel of record, if the alien has such counsel, and counsel has duly filed an appearance before the immigration court on the court’s record. Nothing in either provision suggests an alien who updates his residential address with DHS or the immigration court thus loses the statutory right to have DHS or the immigration court send notice to the address of his counsel of record.

This court’s interpretation of 8 U.S.C. § 1229 is supported by 8 C.F.R. § 1292.5, which requires the immigration court to serve an exhaustive list of papers on aliens’ attorneys. This provision applies equally to notices to appear and hearing notices under 8 U.S.C. § 1229.

It was “procedurally irregular” for the immigration court in the instant case not to send notice to the petitioner’s counsel of record. The hearing notice itself included check-boxes to indicate who should receive the notice, including a box for the alien and the alien’s attorney. On the hearing notice in question, both boxes were checked, which at least suggests the immigration court intended to send the notice to the petitioner’s counsel of record. Nevertheless, the government does not contest that the immigration court failed to send the hearing notice to the petitioner’s counsel of record.

In holding 8 C.F.R. § 1292.5 controls the notice requirement under 8 U.S.C. § 1229a(b)(5), this court disagrees with Giday v. INS, 113 F.3d 230 (D.C. Cir. 1997). Giday provides no compelling rationale for this court to follow. The decision simply omits the key phrase “if any” of 8 U.S.C. § 1229(a)(1) and (2), when discussing the relevant statutes and regulations and gives no reason for such abstinence. Giday has not been followed on this point of law by any subsequent court.

Further, this court rejects the government’s contention that 8 C.F.R. § 1003.23 controls in lieu of 8 C.F.R. § 1292.5 because § 1003.23 is the more specific statute. It is not. Although § 1003.23 may include specific provisions regarding in absentia removal orders, the pertinent text of that regulation is not specific to statutory notice requirements. Instead, the pertinent text addresses exceptions to filing deadlines. Therefore, it is § 1292.5 that is more specific—with respect to notice requirements—than § 1003.23.

In short, this court holds that an in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record. Furthermore, this court holds that the BIA erred when it adopted and affirmed the IJ’s decision. As a result, this court grants the petition for review, reverse the BIA’s decision that adopted the IJ’s order to deny the petitioner’s motion to reopen, and remand for further proceedings.

Acquaah v. Holder, No. 08-3836 (6th Cir. Dec. 18, 2009).

Because the BIA adopted the IJ’s decision with additional commentary, this court reviews the decision of the IJ, as supplemented by the BIA, as the final administrative order. Further, this court reviews the denial of a motion to reopen under the abuse-of-discretion standard. An abuse of discretion exists where the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. On the other hand, legal determinations made by the BIA are reviewed de novo.

Failure to appear at a removal proceeding carries the severe consequence of deportation. An order of removal due to an alien’s failure to appear may be rescinded, however, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances. Such exceptional circumstances include battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances, and they must be beyond the control of the alien. An IJ considers the totality of the circumstances when making a determination that exceptional circumstances exist.

The petitioner’s argument that that his two motions to reopen which were both filed well outside the 180-day time limit should nonetheless be equitably tolled because of former counsel’s ineffective assistance is without merit. This court has indeed applied the doctrine of equitable tolling to motions to reopen removal proceedings. However, even if the petitioner’s motions were found to be timely, he would still not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances, the motions must be denied.

Where the petitioner asserts that had his former counsel timely filed the motion to reopen his removal proceedings in which he was ordered removed in absentia by the IJ for failure to appear for his telephonic master calendar hearing the motion would have been granted, the key issue on appeal is thus whether the petitioner’s good faith but mistaken belief as to the correct date of the master calendar hearing qualifies as an exceptional circumstance. Although this court has not yet determined what constitutes an exceptional circumstance where an alien has received proper notice of a removal hearing, other circuit courts have set a high threshold and are disinclined to view misunderstandings and communication errors as being sufficient. Notwithstanding this general trend, the United States Court of Appeals for the First Circuit found “exceptional circumstances” to exist in a situation with certain similarities to the petitioner’s. Where an alien representing herself pro se “inadvertently mistook” her May 13, 1999 hearing date for May 17, 1999, and where the petitioner promptly contacted the court on May 17 regarding her error and then filed a motion to reopen two days later, the court held that she had demonstrated the existence of an exceptional circumstance and that the IJ had committed an error of law by denying her motion to reopen, particularly in light of her effort and the severe consequences that she allegedly faced if deported.

This court finds that the scenario presented to the First Circuit is sufficiently distinguishable from the present case to call for a different outcome. To begin with, the First Circuit emphasized the need to conduct a totality-of-the-circumstances analysis, and it highlighted the petitioner’s claim under the Convention Against Torture in which she alleged that she would face rape and torture if deported to Uganda. The Petitioner in the instant case, in contrast, has not made any claim that he would be subject to persecution if removed to Ghana. Moreover, the First Circuit noted that the petitioner in that case took immediate and affirmative action following her court date by contacting the court directly and promptly filing a motion to reopen. There is no evidence that the petitioner in the instant case tried to contact the court directly regarding the status of his case at any point during the two-and-one-half years following the missed hearing. Further, the petitioner in the instant case, unlike the petitioner in the First Circuit case, had an attorney, but other than intermittently checking in with his former counsel, the petitioner was disengaged from his removal proceedings for the two-and-one half years prior to his being taken into custody. Exemplifying this disengagement is the fact that the petitioner never even requested a copy of the motion that his former counsel supposedly filed with the immigration court shortly after the missed hearing. At some point during this long period of time, this court finds that the petitioner’s blind reliance upon his former counsel’s representations became unreasonable.

In addition, the weight of authority generally, as noted above, holds that a mistaken belief as to the correct hearing date does not rise to the level of being an exceptional circumstance. The petitioner has not shown that his mistake as to the correct date for the hearing was in any way beyond his control or of an extraordinary nature comparable to the exceptional circumstances specified by statute. This point is further supported by the Supreme Court’s recognition that there 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 opportunity to develop and present their respective cases. The petitioner’s mistake as to the correct date of his hearing had severe consequences, but it was a less compelling circumstance than that required for relief under 8 U.S.C. § 1229a(e)(1). Because the petitioner cannot make this requisite showing, this court need not address the petitioner’s arguments regarding his former counsel’s alleged ineffective assistance of counsel that occurred after the fact, nor do this court has to consider whether the filing period for the motions to reopen should have been equitably tolled. The IJ, in other words, would not have abused his discretion in denying a motion to reopen even if the petitioner’s former counsel had promptly filed such a motion several days after July 5, 2005. This court therefore denies the petition for review.