Calle-Vujiles v. Ashcroft

Decision Date05 March 2003
Docket NumberNo. 02-2261.,02-2261.
Citation320 F.3d 472
PartiesEfrain Modesto CALLE-VUJILES, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent
CourtU.S. Court of Appeals — Third Circuit

Before SLOVITER, RENDELL and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Efrain Modesto Calle-Vujiles ("the Petitioner") petitions this court for review of the Board of Immigration Appeals' ("the BIA") decision denying the Petitioner's motion to reconsider its decision dismissing his appeal. He also petitions for review of the BIA's failure to sua sponte reopen his deportation proceedings so that he may adjust his status.

I.

The Petitioner, a citizen of Ecuador, illegally entered the United States without inspection in 1990. The INS took him into custody in 1991, interviewed him, and on his release, the INS issued the Petitioner an Order to Show Cause ("OSC"). The OSC stated that the Petitioner would be required to appear before an Immigration Judge "on the date and time to be set" in order to "show why[he] should not be deported." Addendum at 2. There is some disagreement about whether the Petitioner was informed of the OSC's contents in Spanish, the only language he understands. The Petitioner changed his place of residence between the time he was issued the OSC and the time that the Hearing Notice was sent to his address of record. The Petitioner failed to appear at the scheduled hearing and was ordered deported to Ecuador, in absentia, pursuant to the now-repealed INA § 242(b). 8 U.S.C. § 1252(b) (1988).

The Petitioner moved to reopen deportation proceedings in January, 1997, asserting lack of notice of the deportation proceeding that resulted in the in absentia order. The Immigration Judge denied the motion. On June 29, 2000, the BIA dismissed the Petitioner's appeal.

The Petitioner petitioned this court for review, asserting that he was denied due process because he did not receive adequate notice of the deportation proceeding. We denied the Petitioner's first petition for review. We noted that the Petitioner was personally served with the OSC, provided with the address of the immigration court, and the Hearing Notice was sent to his address of record. We concluded that the service of process on the Petitioner was consistent with due process and denied the petition for review. Addendum at 1-6.

On August 3, 2001, more than a year after the BIA's decision dismissing the Petitioner's appeal, the Petitioner filed a motion with the BIA asking it to reconsider the BIA's decision and to reopen the deportation proceedings. The Petitioner based his motions on the BIA decisions in In re M-S-, 22 I. & N. Dec. 349 (BIA 1998), and In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001). The BIA denied the motions as time-barred under 8 C.F.R.§ 3.2(b)-(c). The BIA also noted that the decision relied upon in the Petitioner's motion to reopen, In re M-S-, "was based on the statutory requirements of section 242B of the Immigration and Nationality Act, and is therefore inapplicable to the respondent's situation since he was ordered deported under section 242(b) of the Act rather than 242B."

The Petitioner, again, petitions this court for review of the BIA's decision. He argues, inter alia, that it was a violation of due process for the BIA to fail to exercise its discretion to sua sponte reopen the deportation proceedings or reconsider its prior decision. The INS responds, inter alia, that we are without jurisdiction to review the BIA's decision to decline to sua sponte reopen or reconsider the proceedings.

II.

Subsections 3.2(b) and (c) of Title 8 of the Code of Federal Regulations bar motions to reconsider and reopen that are not timely filed. Motions to reconsider must be filed within 30 days of the BIA decision. 8 C.F.R. § 3.2(b). Motions to reopen must be filed no later than 90 days after the date in which the final administrative decision was rendered. 8 C.F.R. § 3.2(c). Here, the BIA issued its final decision on June 29, 2000. The Petitioner moved to reconsider and reopen on August 3, 2001, well after the time had expired for doing so.

Subsection 3.2(a) of the Regulations, however, allows the BIA to reopen or reconsider a case sua sponte at any time. It provides:

(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.

Id.

Generally, the BIA is allowed to reopen or reconsider a case sua sponte in "exceptional situations." In re J-J-, 21 I. & N. Dec. 976 (BIA 1997).

As the Court of Appeals for the First Circuit observed in Luis v. I.N.S., 196 F.3d 36 (1st Cir.1999), "the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion. Therefore, the very nature of the claim renders it not subject to judicial review." Id. at 40. Similarly, the Ninth Circuit Court of Appeals held in Ekimian v. I.N.S., 303 F.3d 1153 (9th Cir.2002), that it "lack[ed] jurisdiction to review a BIA decision not to reopen the proceeding sua sponte under 8 C.F.R. § 3.2(a)." Id. at 1154. Finally, in Anin v. Reno, 188 F.3d 1273 (11th Cir.1999), the Eleventh Circuit Court of Appeals concluded that "§ 3.2(a) gives the BIA non-reviewable discretion to dismiss [a petitioner's] claim." Id. at 1279.

The view that decisions not to sua sponte reopen or reconsider are non-reviewable is based on Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). That was a case in which a group of death row inmates demanded that the FDA enforce provisions of the Food, Drug, and Cosmetic Act, so as to prohibit the "misuse" of certain drugs in executing inmates by lethal injection. It held that courts have no jurisdiction to review matters "committed" to the agency's discretion, including matters where the governing "statute is drawn so that a court would have no meaningful standard of review against which to judge the agency's exercise of discretion." Id. at 830.

The Petitioner insists that the above-cited cases are mistaken in applying Heckler to the immigration context because Heckler dealt only with review of agency enforcement actions under the Administrative Procedure Act ("APA"). The Petitioner argues that, by contrast, the proceeding here is an immigration adjudication where the BIA has decided that sua sponte reopening is allowed in "exceptional situations." According to the Petitioner, this standard enables our court to review such decisions for an abuse of discretion.

Although we are mindful that there is a strong presumption that Congress intends judicial review of administrative action, Chmakov v. Blackman, 266 F.3d 210 (3d Cir.2001), we reject the Petitioner's arguments. The lesson of Heckler v. Chaney is that "review is not available in those rare circumstances where the relevant statute is so drafted that a court would have no meaningful standard against which to judge the...

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