Malukas v. Barr, No. 19-1633

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtEasterbrook, Circuit Judge.
Citation940 F.3d 968
Parties Henrikas MALUKAS, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
Docket NumberNo. 19-1633
Decision Date15 October 2019

940 F.3d 968

Henrikas MALUKAS, Petitioner,
v.
William P. BARR, Attorney General of the United States, Respondent.

No. 19-1633

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2019
Decided October 15, 2019
Rehearing Denied December 9, 2019


Maria T. Baldini-Potermin, Attorney, Maria Baldini-Potermin & Associates, Chicago, IL, for Petitioner.

Jacob A. Bashyrov, Attorney, Oil OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Easterbrook, Hamilton, and St. Eve, Circuit Judges.

Easterbrook, Circuit Judge.

940 F.3d 969

Henrikas Malukas, a citizen of Lithuania, entered the United States in 1992 on a tourist visa and did not leave when it expired. In 1995 he was convicted of several weapons-related felonies and sentenced to 52 months in prison. While he was imprisoned, immigration officials began removal proceedings. Malukas applied for discretionary relief as the spouse of a U.S. citizen, but the immigration judge (and later the Board of Immigration Appeals) concluded that his criminal conduct outweighed whatever equities his family and financial ties to the United States supplied.

The Board’s final order was entered in July 2003, and Malukas did not seek judicial review. He did file a timely motion for reconsideration, arguing that his criminal conduct should not have been deemed such a high obstacle to relief. The Board denied that motion in September 2003, and again Malukas did not seek judicial review.

Malukas remained in the United States, in part because he had allowed his Lithuanian passport to expire and Lithuania would not issue new travel documents. In 2018 Malukas filed with the Board a second motion to reconsider, and an initial motion to reopen, contending that the removal order is invalid because the proceeding began with a "Notice to Appear" that did not include a date and time for the hearing. See Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). The date and time were furnished in a later document, and Malukas did not argue at his removal hearing that he lacked adequate notice. Still, he maintained, the defect on the original Notice to Appear deprived the immigration judge of jurisdiction and vitiated the removal order. The motion also contended that he had been rehabilitated by the passage of time, so that the equities now weighed in his favor, and that Lithuania’s failure to accept his return also justifies discretionary relief. The Board denied this motion as time-and-number barred. (Only one motion to reconsider is allowed, and the time limit for a motion to reopen is 90 days. 8 U.S.C. § 1229a(c)(6)(A), (c)(7)(C)(i) ; 8 C.F.R. § 1003.2(b)(2), (c)(2).) The Board added that a defect in a Notice to Appear does not affect jurisdiction.

That aspect of the Board’s ruling has since been confirmed by this court. Ortiz-Santiago v. Barr , 924 F.3d 956 (7th Cir. 2019). The BIA’s reasoning differs from that of Ortiz-Santiago , but the bottom line is the same. This means that the Board did not commit a legal error that would permit judicial review despite the fact that the motion to reopen is 15 years late and that the second motion to reconsider is not only untimely but also independently barred as successive.

Seeking to avoid the time-and-number problem, Malukas asked the Board to reopen sua sponte —that is to say, on its own volition. The time-and-number limits apply to aliens’ motions and do not restrict the Board’s (or the Attorney General’s) authority to act independently of a motion. But the request that Malukas made—a motion to reopen sua sponte —is an oxymoron. Reopening in response to a motion is not sua sponte ; it is a response to the motion and thus subject to the time-and-number limits.

The Board’s time-and-number limits have a parallel in the federal law of collateral review. Only one motion for review is...

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6 practice notes
  • Salazar-Marroquin v. Barr, No. 19-1669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 13, 2020
    ...his motion" was a "direct challenge to these conclusions." Fuller , 914 F.3d at 520.We revisited Fuller ’s rationale in Malukas v. Barr , 940 F.3d 968 (7th Cir. 2019). We noted the Board's "unfettered discretion" to reopen removal proceedings sua sponte , and we observed that our approach i......
  • Walker v. Wexford Health Sources, Inc., No. 17-2821
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 15, 2019
    ...the merits, we need not address whether the district court correctly concluded that Walker failed to exhaust his administrative remedies.940 F.3d 968 III. ConclusionFor the foregoing reasons, we AFFIRM the judgment of the district court.--------Notes:1 Originally, Warden Michael Lemke was a......
  • Hernandez-Alvarez v. Barr, No. 20-1459
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 2020
    ...the proceedings sua sponte did not contain or imply any legal error. "Judicial review accordingly is unavailable." Malukas v. Barr , 940 F.3d 968, 971 (7th Cir. 2019).III. ConclusionTo the extent that the Board denied the statutory motion to reconsider and reopen, the petition for review is......
  • Serrano v. Barr, No. 19-1492
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 12, 2019
    ...is narrowly circumscribed to reviewing, at the very most, whether the Board misunderstood the basis for the request. See Malukas v. Barr, 940 F.3d 968, 970 (7th Cir. 2019), citing Fuller v. Whitaker, 914 F.3d 514, 520 (7th Cir. 2019). Page 3 B. Merits We review together the decisions of the......
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6 cases
  • Salazar-Marroquin v. Barr, No. 19-1669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 13, 2020
    ...his motion" was a "direct challenge to these conclusions." Fuller , 914 F.3d at 520.We revisited Fuller ’s rationale in Malukas v. Barr , 940 F.3d 968 (7th Cir. 2019). We noted the Board's "unfettered discretion" to reopen removal proceedings sua sponte , and we observed that our approach i......
  • Walker v. Wexford Health Sources, Inc., No. 17-2821
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 15, 2019
    ...the merits, we need not address whether the district court correctly concluded that Walker failed to exhaust his administrative remedies.940 F.3d 968 III. ConclusionFor the foregoing reasons, we AFFIRM the judgment of the district court.--------Notes:1 Originally, Warden Michael Lemke was a......
  • Hernandez-Alvarez v. Barr, No. 20-1459
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 16, 2020
    ...the proceedings sua sponte did not contain or imply any legal error. "Judicial review accordingly is unavailable." Malukas v. Barr , 940 F.3d 968, 971 (7th Cir. 2019).III. ConclusionTo the extent that the Board denied the statutory motion to reconsider and reopen, the petition for review is......
  • Serrano v. Barr, No. 19-1492
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 12, 2019
    ...is narrowly circumscribed to reviewing, at the very most, whether the Board misunderstood the basis for the request. See Malukas v. Barr, 940 F.3d 968, 970 (7th Cir. 2019), citing Fuller v. Whitaker, 914 F.3d 514, 520 (7th Cir. 2019). Page 3 B. Merits We review together the decisions of the......
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