Tamenut v. Mukasey

• Decision Date: 11 March 2008
• Docket Number: No. 05-4418.,05-4418.
• Citation: 521 F.3d 1000
• Parties: Marekegn Asfaw TAMENUT, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

521 F.3d 1000

Marekegn Asfaw TAMENUT, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States of America,¹ Respondent.

No. 05-4418.

United States Court of Appeals, Eighth Circuit.

Submitted: July 19, 2007.

Filed: March 11, 2008.

Herbert A. Igbanugo, Minneapolis, MN (Katie A. DeGrio, on the brief), for petitioner.

David E. Dauenheimer, USDOJ, OIL, Washington, DC, for respondent.

Before LOKEN, Chief Judge, WOLLMAN, BEAM, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.

PER CURIAM.

The question before the en banc court is whether this court has jurisdiction over a petition for review filed by Marekegn Asfaw Tamenut challenging the decision of the Board of Immigration Appeals (BIA) not to reopen sua sponte proceedings relating to Tamenut's removal from the United States. We conclude that the decision whether to reopen removal proceedings sua sponte is committed to the BIA's discretion by law, 5 U.S.C. § 701(a)(2), and that we lack jurisdiction to review the agency's discretionary decision. We therefore dismiss the petition for review.

I.

Section 240 of the Immigration and Nationality Act ("INA") provides that "[a]n immigration judge shall conduct proceedings for deciding the ... deportability of an alien." 8 U.S.C. § 1229a(a)(1); see 8 C.F.R. pt. 1240. The decision of an immigration judge (IJ) that an alien is removable may be appealed to the BIA. 8 C.F.R. §§ 1003.1(b)(2), 1240.15. The BIA "function[s] as an appellate body charged with the review of ... administrative adjudications." Id. § 1003.1(d).

In a removal proceeding, an alien may file one motion to reopen proceedings. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). The motion to reopen must be filed within ninety days of the final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The motion must "state the new facts that will be proven at a hearing to be held if the motion is granted." 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).

The governing regulations also provide that the BIA may reopen proceedings on its own motion. The relevant provision states in full:

(a) General. 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) (first emphasis added). The present version of this regulation was promulgated in 1996, pursuant to statutory authority providing that the Attorney General "shall establish such regulations, ... 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).²

On March 30, 1998, Tamenut filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. On October 22, 1999, an IJ denied the application. On March 28, 2003, the BIA affirmed without opinion. Tamenut filed a petition for review, which a panel of this court denied. Tamenut v. Ashcroft, 361 F.3d 1060 (8th Cir.2004) (per curiam).

The BIA received Tamenut's first motion to reopen on June 7, 2004, and denied it as untimely on August 20, 2004. On October 4, 2005, the BIA received Tamenut's second motion to reconsider and reopen. This motion also requested that the BIA reopen the proceedings on its own motion. On November 21, 2005, the BIA denied Tamenut's motion as untimely. The BIA acknowledged it retained "limited discretionary powers" under § 1003.2(a) to reopen proceedings on its own motion, but stated that this power is confined to "exceptional situations," and concluded that Tamenut's situation did not merit this relief. (R. 2) (citing Matter of J-J-, 21 I & N Dec. 976 (BIA 1997)).

Tamenut filed a petition for review, arguing that the BIA abused its discretion by declining to reopen sua sponte, and that the BIA's decision violated the Due Process Clause. A panel of this court concluded that if it "were writing on a clean slate," then it "probably would conclude that we lack jurisdiction," Tamenut v. Gonzales, 477 F.3d 580, 581 (8th Cir.2007), but determined that it was bound by Recio-Prado v. Gonzales, 456 F.3d 819, 821-22 (8th Cir.2006), and Ghasemimehr v. Gonzales, 427 F.3d 1160, 1162 (8th Cir. 2005), to hold that the BIA's refusal to reopen sua sponte is subject to judicial review. The panel then concluded that the BIA did not abuse its discretion or violate Tamenut's constitutional rights, and thus denied the petition for review. Tamenut, 477 F.3d at 582. A dissenting judge would have dismissed the petition for lack of jurisdiction. Id. at 582-83 (Riley, J., dissenting). We granted rehearing en banc to consider the jurisdictional question.

II.

This court has jurisdiction to review all final orders of removal. 8 U.S.C. § 1252(a)(1), (b). Although the statute does not mention orders denying motions to reopen or reconsider, we have held that the grant of jurisdiction extends to review of these decisions. See Esenwah v. Ashcroft, 378 F.3d 763, 764 (8th Cir.2004); De Jimenez, v. Ashcroft, 370 F.3d 783, 788-89 (8th Cir.2004). We adopted the view of the Seventh Circuit that "Congress has not clearly expressed an intent to depart from the long line of Supreme Court and appellate court decisions interpreting`order of deportation' to include orders denying motions to reconsider and reopen." See id. at 789 (quoting Chow v. INS, 113 F.3d 659, 664 (7th Cir.1997)). In considering the scope of § 1252(a)(1), we do not perceive a material difference between the BIA's decision to deny a party's motion to reopen and the BIA's decision to refuse a party's request that the agency reopen proceedings on its own motion. Thus, to the extent the BIA's refusal to reopen proceedings sua sponte is not committed to agency discretion, we would have jurisdiction to review the decision pursuant to § 1252.

There is a "basic presumption of judicial review" of final agency action, Lincoln v. Vigil, 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), but this presumption may be overridden in certain circumstances. The Administrative Procedure Act declares that its provisions for judicial review do not apply when (1) a statute precludes judicial review, or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a). The INA does include a statutory provision that precludes judicial review of decisions by the Attorney General (other than the granting of relief under 8 U.S.C. § 1158(a)), which are specified under subchapter II of the INA to be in the discretion of the Attorney General. 8 U.S.C. § 1252(a)(2)(B)(ii). Because the INA does not specifically address the Attorney General's authority to reopen proceedings on his own motion, § 1252(a)(2)(B)(ii) does not preclude judicial review of the BIA's refusal to reopen sua sponte. Even where a jurisdiction-stripping statute does not preclude review of a particular agency action, however, we must still consider whether that agency action is "committed to agency discretion by law" under § 701(a)(2) of the APA. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see, e.g., Ngure v. Ashcroft, 367 F.3d 975, 981-82 (8th Cir.2004); Kambolli v. Gonzales, 449 F.3d 454, 461 (2d Cir.2006).

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, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 79-752, at 26 (1945)), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has 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." Chaney, 470 U.S. at 830, 105 S.Ct. 1649. The application of the "committed to agency discretion" exception to judicial review "requires careful examination of the statute on which the claim of agency illegality is based." Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). In conducting this examination, we consider "both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards for reviewing that action." Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C.Cir.2006) (internal quotation omitted). The absence of any statutory factors to guide the agency's decision-making process, in combination with the open-ended nature of the inquiry, generally supports the conclusion that the "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2); see Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979); State of North Dakota v. Yeutter, 914 F.2d 1031, 1035 (8th Cir.1990).

Ten courts of appeals, finding no meaningful standard against which to judge the agency's exercise of discretion, have held that the BIA's decision whether to reopen proceedings on its own motion is committed to agency discretion by law. Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Alt v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th...