Lenis v. U.S. Atty. Gen.

Decision Date05 May 2008
Docket NumberNo. 07-13629.,07-13629.
PartiesClara Ines LENIS, Orlando Herrera, Tatiana Herrera, Marlon Alexis Herrera, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

David H. Stoller, Stoller & Moreno, PA, Orlando, FL, for Petitioners.

Yamileth HandUber, David V. Bernal, Anthony P. Nicastro, Jocelyn L. Wright, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before TJOFLAT and MARCUS, Circuit Judges, and VINSON,* District Judge.

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 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 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam) (unpublished); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th 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, 521 F.3d 1000, 1005 (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, 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 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, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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:

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, 521 F.3d at 1004 ("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 249-50 ("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, 521 F.3d 1000, 1004.

For these reasons, we hold that the BIA's decision whether to reopen 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.

* Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.

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. 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, 115 S.Ct. 537, 130 L.Ed.2d 439 (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 Fed.Appx. 881, 885 (11th Cir.2006) (unpublished) (same), and Umana v. U.S. Att'y Gen., 176 Fed.Appx. 15, 17 (11th Cir.2006) (unpublished) (same), with Finlayson-Green v. U.S. Att'y Gen., 228 Fed.Appx. 919, 921 (11th Cir.) (unpublished) (holding that this Court has jurisdiction), cert. denied, ___ U.S. ___, 128 S.Ct. 733, 169 L.Ed.2d 553 (2007), Banmally v. U.S. Att'y Gen., 199 Fed.Appx. 936, 937 n. 1 (11th Cir.2006) (unpublished) (same), and Rahman v. U.S. Att'y Gen., 187 Fed.Appx. 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).

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) ("Becau...

To continue reading

Request your trial
148 cases
  • Animal Legal Def. Fund v. U.S. Dep't of Agric.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 15, 2015
    ...Whether an agency action is reviewable under § 701(a)(2) is a matter of subject matter jurisdiction. See Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293–94 (11th Cir.2008) ; but see Sierra Club v. Jackson, 648 F.3d 848, 853–54 (D.C.Cir.2011) (holding agency decisions excluded from judicial......
  • Chen v. Garland
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 5, 2022
    ...to the Attorney General, and sets no standard for the Attorney General's decision-making in this context." Lenis v. U.S. Att'y Gen. , 525 F.3d 1291, 1293 (11th Cir. 2008) (referring to 8 U.S.C. § 1103(g)(2) ). The regulation reflects this discretion. At the time of the proceedings in this c......
  • Williams v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 16, 2022
    ...Barr , 953 F.3d 1054, 1057 (8th Cir. 2020) ; Butka v. Att'y Gen. , 827 F.3d 1278, 1286 & n.7 (11th Cir. 2016) ; Lenis v. Att'y Gen. , 525 F.3d 1291, 1292–1294 (11th Cir. 2008).10 Indeed, Petitioner's arguments about whether and how the Board may consider diligence in deciding whether to reo......
  • Zetino v. Holder
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 18, 2010
    ...to a general grant of regulatory authority that sets no standards for this decision. See 8 U.S.C. § 1103(g)."); Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1293 (11th Cir.2008) ("[N]o statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives fr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT