Gor v. Holder

• Decision Date: 04 June 2010
• Docket Number: No. 08-3859.,08-3859.
• Citation: 607 F.3d 180
• Parties: Tushar Pravinkumar GOR, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

607 F.3d 180

Tushar Pravinkumar GOR, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-3859.

United States Court of Appeals Sixth Circuit.

Argued: April 22, 2009.

Decided and Filed: June 4, 2010.^*

Rehearing and Rehearing En Banc Denied Oct. 5, 2010.

ARGUED: Philip A. Eichorn, Law Offices, Cleveland, Ohio, Jonathan A. Bartell, Law Offices of Jonathan A. Bartell, Cleveland, Ohio, for Petitioner. Kiley L. Kane, U.S. Department of Justice, Washington, DC, for Respondent. ON BRIEF: Philip A. Eichorn, Law Offices, Cleveland, Ohio, Jonathan A. Bartell, Law Offices of Jonathan A. Bartell, Cleveland, Ohio, for Petitioner. Kiley L. Kane, John S. Hogan, U.S. Department of Justice, Washington, DC, for Respondent.

Before: BATCHELDER, Chief Judge; COLE, Circuit Judge; LAWSON, District Judge.

LAWSON, D.J., delivered the opinion of the court. BATCHELDER, C.J. (pp. 193- 96), delivered a separate concurring opinion. COLE, J. (pp. 196-99), delivered a separate opinion, concurring in part and concurring in the judgment.

OPINION

DAVID M. LAWSON, District Judge.

Petitioner Tushar Gor, a citizen of India, seeks review of a removal order entered on the ground that Gor is an “alien ... convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). Gor was convicted under section 2919.21(B) of the Ohio Revised Code, which prohibits “abandon[ment], or fail[ure] to provide support as established by a court order to, another person whom, by court order or decree, the person is legally obligated to support.” Ohio Rev.Code Ann. § 2919.21(B). Although he raises four issues in his petition, the main thrust of Gor's argument is that his crimes amounted to non-support, not child abandonment, and therefore he has not committed an offense that subjects him to removal. Gor did not raise any of his four issues initially before the Immigration Judge or the Board of Immigration Appeals, nor did he file a timely petition for review of the final order of removal. He did raise these issues in a motion before the BIA to reopen the proceedings sua sponte, which motion was denied, and Gor has petitioned for review of that decision as well. The government has filed a motion to dismiss claiming that we have no jurisdiction to review the original decision of the BIA because of Gor's untimely petition, and we likewise have no jurisdiction to review the denial of the motion to reopen because that decision is committed to the BIA's discretion. We agree that we have no jurisdiction to review the original BIA decision. We also must conclude that we have no jurisdiction to review the denial of the motion to reopen sua sponte, although the Supreme Court's recent decision in Kucana v. Holder, --- U.S. ----, 130 S.Ct. 827, --- L.Ed.2d ---- (2010), casts considerable doubt on our circuit precedent that dictates that result. Therefore, we will grant the government's motion to dismiss, and urge the en banc court to reexamine the validity of our prior cases in this area.

I.

The petitioner, a twenty-nine-year-old citizen of India, was admitted to the United States as a lawful permanent resident on February 27, 1985, when he was four years old. Both of his parents are naturalized United States citizens who retired to live in India in January 2005. The petitioner's brother resides in the United States, and the petitioner's own ties to India are limited to three trips he made there during the 1990s for a total period of less than three months. The petitioner earned an associate's degree in computer electronics, but upon graduation worked at various manual-labor jobs outside of the computer electronics field. The petitioner's connections to the United States grew stronger when, at the age of seventeen, he fathered twin sons out of wedlock. It is his failure to provide financial support for his sons that causes his current immigration difficulties.

Gor was charged and convicted of four counts of felony non-support under Ohio Revised Code section 2919.21(B) on September 22, 2004, and three more counts of the same charge on May 26, 2006. In the first case, he was charged with “recklessly failing to provide support as established by a court order” when he fell behind on his child support obligations, and he was sentenced to three years of community control. However, Gor apparently failed to report to his probation officer, and when the child support arrearage continued to accumulate, he was charged with three more counts of “abandon[ing] or fail[ing] to provide support” and was convicted on May 26, 2006. This time, he was sentenced to a twenty-four-month custody term (eight months on each of the counts).

Shortly after the 2006 sentencing, on June 16, 2006, the U.S. Department of Justice issued the petitioner Form I-862, Notice to Appear, which formally placed him in removal proceedings. Master calendar hearings were held in the petitioner's case on October 18, 2006, November 15, 2006, and February 20, 2007, and the petitioner appeared for all of those hearings via a telemonitor from the Orient Confinement Facility in Ohio. During the October 18, 2006 hearing, the immigration judge advised the petitioner that he had a right to a lawyer at his own expense, and if he could not afford a lawyer, the court would give him “a list of organizations that might represent you at low cost or no charge but they do not have to represent you.” App'x at 27. Although the petitioner was never provided with such a list, his hearing was adjourned until November 15, 2006 to allow him the opportunity to retain counsel. The master calendar hearing was adjourned for the second time on November 15, 2006 when the petitioner still had not found a lawyer. At that point, the IJ advised Gor that if he did not retain a lawyer by the next hearing set for February 20, 2007, “we'll have to proceed without a lawyer.” Suppl. App'x at 68-69. On February 20, the petitioner, still incarcerated, appeared without counsel again. The following exchange took place during the hearing:

Q. Sir, we had a prior proceeding in this case and I've advised you of your rights to a lawyer. Do you have a lawyer, sir?

A. Not at this time, Sir, I contacted about 75 lawyers, each one I got a response from said they can't do it for under $2,000 which right now I don't have the capable means of, as I'm locked up.

Q. Okay, sir, well, I'm going to proceed with your case. I stated before, U.S. Government doesn't provide you with a lawyer and if a charitable organization's not going to represent you, then you're going to have to proceed without a lawyer.... Do you understand?

A. Yes, Sir.

App'x at 30-31. During the hearing, the petitioner admitted all the allegations made in the Notice to Appear, and the IJ found him in violation of section 237(a)(2)(E) as having been convicted of a crime of child neglect or abandonment. Since the petitioner indicated a desire to file for asylum, the judge set the case for an individual hearing.

At the final individual hearing on April 10, 2007, Gor, again appearing pro se, moved for cancellation of removal under section 240A of the Immigration and Nationalization Act. The IJ denied Gor's request.

On May 10, 2007, the petitioner appealed to the BIA, still proceeding pro se, challenging only the merits of the cancellation-of-removal determination. On October 5, 2007, the BIA affirmed the Immigration Judge's decision without opinion. Gor did not file a petition for review of this decision within ninety days.

On May 20, 2008, Gor had retained counsel, who moved the BIA to reopen removal proceedings sua sponte under 8 C.F.R. § 1003.2(a). For the first time, the petitioner raised the following four arguments: (1) his Ohio state convictions of nonsupport are not removable offenses under 8 U.S.C. § 1227(a)(2)(E)(i); (2) the IJ erred when he did not provide the petitioner with a list of low-cost immigration attorneys in the area; (3) the petitioner was denied due process when the IJ proceeded with the removal hearing despite the petitioner's inability to retain an attorney; and (4) the IJ erred when he failed to advise the petitioner of the availability of and consider discretionary relief from removal available to the petitioner. The BIA denied the motion on June 11, 2008, finding that the case was “not an exceptional situation” since “[a]ll of the claims presented by the respondent ... could have been presented to the Board on appeal,” and the case law Gor cited came from “outside of the Sixth Circuit,” was “unpublished[,] or not directly relevant.” App'x at 9.

The petitioner filed a timely petition for review of this decision, raising the four arguments presented to the BIA in his petition to reopen. As noted earlier, the government filed a motion to dismiss for lack of jurisdiction.

II.

Before we may consider the merits of the petitioner's claims, we must address the question of jurisdiction. The government had moved to dismiss the petition, arguing that the underlying removal order is beyond our jurisdiction because the petitioner did not file a petition to review that order within ninety days after it was issued, as required by 8 U.S.C. § 1252(b)(1) (which now requires a review petition to be filed “not later than 30 days after the date of the final order of removal”); the petitioner's arguments on appeal are not exhausted because the petitioner never properly presented them to the BIA for consideration; and this court lacks jurisdiction to review the BIA's decision not to reopen the proceedings sua sponte because that decision was based on the agency's exercise of discretion and Congress has stripped courts of “jurisdiction to review ... any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The...