Lenis v. U.S. Atty. Gen., No. 07-13629.

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtMarcus
Citation525 F.3d 1291
PartiesClara Ines LENIS, Orlando Herrera, Tatiana Herrera, Marlon Alexis Herrera, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.
Decision Date05 May 2008
Docket NumberNo. 07-13629.
525 F.3d 1291
Clara Ines LENIS, Orlando Herrera, Tatiana Herrera, Marlon Alexis Herrera, Petitioners,
v.
U.S. ATTORNEY GENERAL, Respondent.
No. 07-13629.
United States Court of Appeals, Eleventh Circuit.
May 5, 2008.

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

525 F.3d 1292

(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);

525 F.3d 1293

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...

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138 practice notes
  • Conservancy of Southwest Florida v. U.S. Fish & Wildlife Serv., No. 11–11915.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 18 Abril 2012
    ...agency's discretion to act is there sufficient ‘law to apply’ as to allow judicial review.”). In Lenis v. United States Attorney General, 525 F.3d 1291 (11th Cir.2008), we held that the Board of Immigration Appeals' decision whether to reopen a case sua sponte was committed to agency discre......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Febrero 2010
    ...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 from ......
  • Animal Legal Def. Fund v. U.S. Dep't of Agric., No. 14–12260.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Junio 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......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 4 Junio 2010
    ...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 607 F.3d 190 the BIA to reopen cases sua sponte; rather, the regulation at issue ......
  • Request a trial to view additional results
138 cases
  • Conservancy of Southwest Florida v. U.S. Fish & Wildlife Serv., No. 11–11915.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 18 Abril 2012
    ...agency's discretion to act is there sufficient ‘law to apply’ as to allow judicial review.”). In Lenis v. United States Attorney General, 525 F.3d 1291 (11th Cir.2008), we held that the Board of Immigration Appeals' decision whether to reopen a case sua sponte was committed to agency discre......
  • Zetino v. Holder, No. 08-70390.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Febrero 2010
    ...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 from ......
  • Animal Legal Def. Fund v. U.S. Dep't of Agric., No. 14–12260.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 15 Junio 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......
  • Gor v. Holder, No. 08-3859.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 4 Junio 2010
    ...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 607 F.3d 190 the BIA to reopen cases sua sponte; rather, the regulation at issue ......
  • Request a trial to view additional results

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