Ekimian v. I.N.S., No. 99-70322.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWilliam A. Fletcher
Citation303 F.3d 1153
PartiesTigran EKIMIAN; Rouzan Nagapetian; Avetis Hekimian, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Decision Date12 September 2002
Docket NumberNo. 99-70322.
303 F.3d 1153
Tigran EKIMIAN; Rouzan Nagapetian; Avetis Hekimian, Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 99-70322.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 14, 2000.
Submission Withdrawn April 16, 2001.
Resubmitted September 5, 2002.
Filed September 12, 2002.

Page 1154

Victor D. Nieblas, Los Angeles, CA, for the petitioners.

David V. Bernal, Brenda E. Ellison, and Donald A. Couvillon, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos. A70-945-403/404/405.

Before: BRIGHT,* T.G. NELSON, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.


Tigran Ekimian, his wife, Rouzan Nagapetian, and their minor son, Avetis Hekimian, (hereinafter the "Ekimians") seek review of an order by the Board of Immigration Appeals ("BIA") dismissing as untimely their motion to reopen deportation proceedings. The Ekimians based their motion to reopen on an application for an adjustment of status as a skilled worker or professional pursuant to Immigration and Naturalization Act ("INA") §§ 203(b)(3)(A)(i), (ii), 8 U.S.C. §§ 1153(b)(3)(A)(i), (ii), relying on Tigran Ekimian's recently approved I-140 petition (Immigrant Petition for Alien Worker). We hold that the Ekimians' motion to reopen was untimely under 8 C.F.R. § 3.2(c)(2), and that we lack jurisdiction to review a BIA decision not to reopen the proceeding sua sponte under 8 C.F.R. § 3.2(a).

I. Facts and Procedural Background

Ekimian, an Armenian citizen, entered the United States as a nonimmigrant visitor on October 1, 1993, and was authorized to remain in the United States until March 28, 1994. His wife and son, also Armenian citizens, entered the United States as nonimmigrant visitors on November 12, 1993, and were also authorized to stay in the United States until March 28, 1994.

On December 1, 1993, the Ekimians applied for asylum in the United States.1 In 1995, the Agbu Manoogian Demirdjian School, a fully accredited, K-12 coeducational institution, hired Ekimian as a physical education instructor and educator. Based on Ekimian's performance, school administrators petitioned for the Ekimians' permanent residency by first filing a petition for labor certification with the Department of Labor ("DOL") on October 30, 1995. There was a nearly two-year delay in the DOL's approval of Ekimian's certification. On September 9, 1997, the Immigration and Naturalization Service ("INS") received the DOL's approval; thirty-eight days later, the INS approved the school's I-140 petition (Immigrant Petition for Alien Worker) for Ekimian.2

Meanwhile, on June 26, 1995, the INS had administratively denied the Ekimians'

Page 1155

petition for asylum and had issued Orders to Show Cause why they should not be deported. On March 28, 1996, the immigration judge ("IJ") denied the Ekimians' request for asylum and found them deportable. The IJ allowed the Ekimians to depart voluntarily.

The Ekimians, acting pro se, appealed the IJ's decision to the BIA. On April 28, 1997, the BIA denied the appeal. The BIA found that Ekimian was not a "credible claimant for asylum or withholding of deportation" and that he had not met his burden of demonstrating persecution or a well-founded fear of persecution should he return to Armenia. The BIA also rejected Ekimian's claim that he was prejudiced by the IJ's conduct during the proceedings. The BIA ordered the Ekimians to depart by May 28, 1997, and continued their voluntary departures. The Ekimians subsequently filed a petition for review of the BIA's decision.

While the petition for review was pending in this court, the Ekimians, now represented by counsel, filed a motion with the BIA on November 20, 1997, to reopen the deportation proceedings. As grounds for their motion to reopen, the Ekimians pointed out that Tigran Ekimian had received notice from the INS a month before, on October 17, 1997, that his I-140 certification had been approved, and that, based on this approval, he had applied for adjustment of status to lawful permanent resident alien on October 28, 1997. On December 19, 1997, this court denied the Ekimians' petition for review of the BIA's denial of asylum. Ekimian v. INS, 133 F.3d 926 (9th Cir. Dec. 19, 1997) (unpublished decision).

On February 22, 1999, the BIA denied the Ekimians' motion to reopen as untimely. Under 8 C.F.R. § 3.2(c)(2), a party-filed motion to reopen a proceeding must be filed within ninety days of the date on which the BIA renders a final administrative decision. The BIA had denied the Ekimians' appeal from the IJ's decision on April 28, 1997, which meant that a party-filed motion to reopen under § 3.2(c)(2) had been due on or before July 28, 1997. The Ekimians did not file their motion until November 20 of that year.

The BIA also refused to reopen sua sponte. Under 8 C.F.R. § 3.2(a), the BIA may reopen a proceeding "on its own motion" "at any time."

The Ekimians now petition for review of the BIA's refusal to reopen.

II. Jurisdiction under the Transitional Rules

Our jurisdiction to review the decision of the BIA in this case is governed by 8 U.S.C. § 1105a (repealed). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L.No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), repealed 8 U.S.C. § 1105a, but that repeal does not apply to this petition. The parties agree that this case falls under the transitional rules because deportation proceedings against the Ekimians were commenced before April 1, 1997, and a final order of deportation was entered after October 30, 1996.

III. Discussion

The Ekimians make two central arguments. First, they argue that their motion to reopen should be treated as if it were timely even though it was made more than ninety days after the BIA denied their appeal from the IJ's denial of their asylum application. Second, they argue that the BIA's refusal to reopen on its own motion,

Page 1156

or sua sponte, was an abuse of discretion, and that this court has jurisdiction to review that refusal on an abuse-of-discretion standard. For the reasons that follow, we disagree with both arguments.

A. Ninety-day Limitation on Party-Filed Motions to Reopen under § 3.2(c)(2)

The Ekimians argue that the ninety-day time limit for party-filed motions to reopen contained in 8 C.F.R. § 3.2(c)(2)3 conflicts with INA §§ 203(a), (b), 8 U.S.C. §§ 1153(a), (b); and INA §§ 245(a), (i), 8 U.S.C. §§ 1255(a), (i). Sections 203(a) and (b) of the INA provide preference in the allocation of immigrant visas to relatives of citizens and lawful permanent residents, as well as to employment-based immigrants. Sections 245(a) and (i) of INA provide for the adjustment of status of a nonimmigrant to that of lawful permanent resident. Nothing in § 3.2(c)(2) negates or is otherwise inconsistent with these statutory directives.

The only effect § 3.2(c)(2) has on an application made pursuant to § 203 and § 245 (e.g., the Ekimians' application) is that a motion to reopen to consider an application for an adjustment of status must be presented to the BIA no later than ninety days after the issuance of a final decision by the BIA. Nothing in the statutory language of §§ 203(a), (b), or §§ 245(a), (i), forecloses the imposition of such a deadline. To the extent that the Ekimians question the ability of the Attorney General to qualify statutory procedures by regulation, we point out that Congress itself codified the time limit of § 3.2(c)(2) in IIRIRA in 1996 (enacting 8 U.S.C. § 1229a(c)(6)(C)(i)). The statutory language provides: "Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(6)(C)(i). We therefore hold that § 3.2(c)(2) does not conflict with INA §§ 203(a), (b), or §§ 245(a), (i).

B. The BIA's Refusal to Reopen on its Own Motion

The Ekimians next argue that the BIA abused its discretion in refusing to reopen sua sponte. The BIA's sua sponte power to reopen deportation proceedings such as the Ekimians' is described in 8 C.F.R. § 3.2(a):

(a) General. The [BIA] 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 [BIA], which request is made by the [INS], or by the party affected by the decision, must be in the form of a written motion to the [BIA]. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the [BIA], subject to the

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restrictions of this section. The [BIA] has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

(Emphasis added, last italic in original.) The italicized sentence provides that the BIA may reopen "on its own motion" "at any time," but it does not specify a standard (even a discretionary standard) that the BIA should apply in deciding whether to reopen. The italicized sentence contrasts with the unitalicized sentences that follow. Those sentences specify that if the parties to the case (the INS or "the party affected by the decision") wish to ask the BIA to reopen a case, they must do so by means of a written motion. They also specify that the BIA's decision to grant or deny such a party-filed motion is "within the discretion of the [BIA], subject to the restrictions of this section."

Under 8 U.S.C. § 1229a(c)(6)(C)(i), IIRIRA's codification of 8 U.S.C. § 3.2(c)(2), a party has ninety days from the BIA's final administrative order to file a motion to reopen. By contrast, no statutory language authorizes the BIA to reopen a deportation proceeding sua sponte. The only basis for any BIA authority to reopen sua sponte is found in 8 C.F.R. § 3.2(a).

The Ekimians argue that the BIA's power to reopen a case on its own motion, like its power to grant a...

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156 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...sponte power to reopen deportation proceedings in "exceptional circumstances" is a matter shielded from judicial review); Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir. 1999) To begin, the court is skeptical of defendants' claim that the term......
  • Perez v. Wolf, No. 18-35123
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 Noviembre 2019
    ...of meaningful standards of review. Spencer , 345 F.3d at 688 (quoting Chaney , 470 U.S. at 830, 105 S.Ct. 1649 ). In Ekimian v. INS. , 303 F.3d 1153 (9th Cir. 2002), for example, we held that we could not review the BIA’s refusal to reopen deportation proceedings sua sponte because, althoug......
  • Sheikh v. United States Dep't Of Homeland Sec., No. CV 09-5330 SVW (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 15 Diciembre 2009
    ...cases where the agency had discretion to act purely as a result of regulatory authority or agency policy. For example, in Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), the Ninth Circuit applied section 701(a)(2) to the Board of Immigration Appeals' (BIA) refusal to reopen sua sponte a depor......
  • Bonilla v. Lynch, No. 12-73853
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Julio 2016
    ...(2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS , 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reope......
  • Request a trial to view additional results
156 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...sponte power to reopen deportation proceedings in "exceptional circumstances" is a matter shielded from judicial review); Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir. 1999) To begin, the court is skeptical of defendants' claim that the term......
  • Perez v. Wolf, No. 18-35123
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 22 Noviembre 2019
    ...of meaningful standards of review. Spencer , 345 F.3d at 688 (quoting Chaney , 470 U.S. at 830, 105 S.Ct. 1649 ). In Ekimian v. INS. , 303 F.3d 1153 (9th Cir. 2002), for example, we held that we could not review the BIA’s refusal to reopen deportation proceedings sua sponte because, althoug......
  • Sheikh v. United States Dep't Of Homeland Sec., No. CV 09-5330 SVW (RCx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 15 Diciembre 2009
    ...cases where the agency had discretion to act purely as a result of regulatory authority or agency policy. For example, in Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002), the Ninth Circuit applied section 701(a)(2) to the Board of Immigration Appeals' (BIA) refusal to reopen sua sponte a depor......
  • Bonilla v. Lynch, No. 12-73853
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Julio 2016
    ...(2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS , 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reope......
  • Request a trial to view additional results

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