Pllumi v. Attorney Gen. of The United States

Decision Date06 April 2011
Docket NumberNo. 09–4454.,09–4454.
Citation642 F.3d 155
PartiesTonin PLLUMI, Petitioner,v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Nathan Weill [Argued], New York, NY, for Petitioner.Jesse L. Busen [Argued], Eric H. Holder, Jr., James A. Hunolt, Thomas W. Hussey, Justin R. Markel, United States Department of Justice, Office of Immigration Litigation, Civ. Div., Washington, DC, for Respondent.Before: JORDAN, GREENAWAY, JR. and STAPLETON, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Tonin Pllumi (Pllumi) 1 is a native and citizen of Albania who entered the United States illegally and has been found removable pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i). Pllumi has filed a petition for review based on the denial by the Board of Immigration Appeals (“BIA”) of his motion asking the BIA to reopen his immigration proceedings and reconsider its decision declining to grant him asylum. The BIA denied his motion as untimely and chose not to exercise its authority to reopen the case sua sponte. Pllumi claims that the decision not to reopen requires remand because the BIA abused its discretion in determining that he had failed to demonstrate changed country conditions, and because the BIA predicated its refusal to reopen on the erroneous belief that healthcare concerns cannot be a basis for asylum. Although we conclude that the first of those arguments is meritless, there may be merit in the second. Because the basis upon which the BIA declined to exercise its authority to reopen sua sponte is unclear, we will grant the petition for review and remand so that the BIA can clarify its decision.

I. Background

Pllumi filed his original application for asylum and withholding of removal on June 19, 2002. In 2005, he supplemented that application and added a claim under the Convention Against Torture (“CAT”). In support of his application, Pllumi asserted that he had suffered persecution because of his active support of Albania's Democratic Party and because he is Catholic. Further, Pllumi alleged that he feared he would again be persecuted for his political and religious beliefs if he were returned to Albania. Ultimately, the Immigration Judge (“IJ”) denied him all relief, holding that Pllumi had failed to establish past persecution or a well-founded fear of future persecution.2

Pllumi appealed that decision and, on June 28, 2007, the BIA upheld the IJ's decision, concluding that, even if Pllumi were credible, he had not established a well-founded fear of persecution and thus had failed to establish his eligibility for relief. In its decision, the BIA also determined that Pllumi was ineligible for humanitarian asylum under either subsection (A) or (B) of 8 C.F.R. § 1208.13(b)(1)(iii) because, first, any persecution he had suffered in the past was not so severe as to constitute a “compelling reason” under subsection (A) for Pllumi to be unwilling or unable to return to his home country and, second, he had failed to establish that, as required by subsection (B), he would be subject to “other serious harm” upon removal. Because Pllumi had not established asylum eligibility, it followed that he had “also failed to satisfy the higher burden of proof required for withholding of removal.” (AR at 127.) Additionally, the BIA held that Pllumi did not qualify for CAT protection because he had failed to establish that it was more likely than not he would be tortured upon return to Albania.

On September 17, 2009, Pllumi filed the motion that is the subject of this petition for review. He argued that, based upon evidence that he would suffer serious harm upon removal, the BIA should reopen his immigration proceedings and reconsider its prior decision. Specifically, Pllumi argued that he is entitled to humanitarian asylum because, regardless of whether he showed he had been or would be persecuted, he would suffer “other serious harm” if he were sent back to Albania because he would have to rely on Albania's healthcare system, which he says is poorer than the United States' system and insufficient to treat severe injuries he sustained in a hit-and-run car accident. He contended that the harm he faced from substandard medical care warranted the BIA's exercise of its authority to sua sponte reopen proceedings, even if his motion to reopen was deemed untimely. Pllumi also argued that the BIA should reopen his proceedings based on changed country conditions in Albania.3

On October 30, 2009, the BIA denied Pllumi's motion to reopen and reconsider, holding that it was untimely.4 As to Pllumi's argument of harm from substandard healthcare, the BIA said:

Pllumi's “concerns about his future healthcare on his return to Albania are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board.”(AR at 4.) The BIA concluded that Pllumi had “not presented an exceptional situation which would warrant reopening” and declined to exercise its authority to reopen his case sua sponte.

Pllumi has petitioned for review of the BIA's decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA's refusal to sua sponte reopen his proceedings is predicated on an error of law.

II. Standard of Review

In immigration cases, we review a denial of a motion to reopen or a motion to reconsider for abuse of discretion, regardless of the underlying basis of the alien's request for relief. INS v. Doherty, 502 U.S. 314, 323–24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). We give the BIA's decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and quotation omitted).

However, motions that ask the BIA to sua sponte reopen a case 5 are of a different character. Because such motions are committed to the unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and how to exercise that discretion.6 Calle–Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Nevertheless, in Mahmood v. Holder the United States Court of Appeals for the Second Circuit suggested that there is jurisdiction to remand to the BIA for reconsideration when the BIA's decision to decline to exercise its sua sponte authority is based on a misperception of the relevant law. 570 F.3d 466, 469 (2d Cir.2009). In Mahmood, the petitioner, a native of Pakistan, filed for an adjustment of status after his marriage to a U.S. citizen. Id. at 467–68. The Department of Homeland Security (“DHS”) found that the marriage had been entered into for “the purpose of evading the immigration laws” and, as a result, declined to adjust Mahmood's status. Id. at 468. Mahmood was then granted a 120–day voluntary departure period with an alternative order of removal to Pakistan. Id. During that period, Mahmood divorced his first wife and, shortly thereafter, married another U.S. citizen and filed a motion to reopen his removal proceedings. Id. He also sought to stay his voluntary departure, saying, he would not have agreed to [it] had he understood the terms.” Id. The IJ held that Mahmood's motion was untimely and that sua sponte reopening would be futile because Mahmood was barred from adjustment of status for a period of ten years because of his prior failure to depart. Id. Mahmood then filed an appeal, which the BIA dismissed for essentially the same reasons. Id. at 469.

Later, the Supreme Court in Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008), held that an alien could unilaterally withdraw from voluntary departure so as to pursue a motion to reopen. Mahmood, 570 F.3d at 470. That meant that Mahmood's stated desire to retract his decision to voluntarily depart would not have resulted in a ten-year bar to an adjustment of his status, as the BIA and IJ had thought when denying the motion to reopen. In light of Dada, the Second Circuit determined that it was error for the IJ and BIA to assume that Mahmood's failure to timely depart from the United States “conclusively barred an adjustment of his status” and thus sua sponte reopening was not necessarily futile. Id. at 467. Recognizing that it generally lacked jurisdiction to review the BIA's decision to deny sua sponte reopening, the Second Circuit nevertheless remanded the case so that the BIA could reconsider it in light of Dada. Id. at 467, 471. The Court decided it could exercise jurisdiction “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail.” Id. at 469.

We have not previously had occasion to consider whether a question of law arising in the context of a request for sua sponte reopening, as was implicated in Mahmood, gives rise to our jurisdiction. As noted earlier, we typically cannot review a BIA decision to deny sua sponte reopening. That jurisdictional limitation is a product of precedent noting that there is simply no meaningful standard against which such a decision can be judged, because the BIA can make the decision for practically any reason at all; 7 its discretion is essentially complete.8 Calle–Vujiles, 320 F.3d at 474–75; see 8 C.F.R. § 1003.2(a).

However, the discretionary character of a decision to reopen sua sponte does not mean that we are powerless to point out when a decision is based on a false legal premise. Mahmood demonstrates that, and we adopt the Second Circuit's reasoning in that...

To continue reading

Request your trial
200 cases
  • Williams v. Garland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 16 Noviembre 2022
    ...Thompson v. Barr , 959 F.3d 476, 483–484 (1st Cir. 2020) ; Mahmood v. Holder , 570 F.3d 466, 469 (2d Cir. 2009) ; Pllumi v. Att'y Gen. , 642 F.3d 155, 161–163 (3d Cir. 2011) ; Rodriguez-Saragosa v. Sessions , 904 F.3d 349, 355 (5th Cir. 2018) ; Bonilla v. Lynch , 840 F.3d 575, 588 (9th Cir.......
  • Alexander-Mendoza v. Attorney Gen. United States
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 2 Diciembre 2022
    ...motion to reconsider for an abuse of discretion. See Castro v. Att'y Gen. , 671 F.3d 356, 364 (3d Cir. 2012) (citing Pllumi v. Att'y Gen. , 642 F.3d 155, 158 (3d Cir. 2011) ); 8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to ... reconsider is within the discretion of the Boa......
  • Bonilla v. Lynch
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Julio 2016
    ...do have such limited jurisdiction. See, e.g. , Salgado–Toribio v. Holder , 713 F.3d 1267, 1271 (10th Cir. 2013) ; Pllumi v. Attorney General , 642 F.3d 155, 160 (3d Cir. 2011) ; Mahmood v. Holder , 570 F.3d 466, 469 (2d Cir. 2009). For reasons explained in Part III.B, infra , we agree with ......
  • Darby v. Attorney Gen. of the U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 17 Junio 2021
    ...See 8 C.F.R. § 1003.2(a). The BIA has "unfettered discretion" to grant or deny a motion to reopen sua sponte. Pllumi v. Att'y Gen. , 642 F.3d 155, 159 (3d Cir. 2011). Because "orders by the BIA declining to exercise its discretion to reopen sua sponte are functionally unreviewable," we gene......
  • 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