Ochoa v. Holder, 07-3715.

• Decision Date: 05 May 2010
• Docket Number: No. 07-3715.,07-3715.
• Citation: 604 F.3d 546
• Parties: Ana Rosa OCHOA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

604 F.3d 546

Ana Rosa OCHOA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 07-3715.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 15, 2009.

Filed: May 5, 2010.

Bart A. Chavez, argued, Omaha, NE, for Petitioner.

Andrew Oliveira, USDOJ, argued, Washington, DC, for Respondent.

Before BYE, BEAM, and COLLOTON, Circuit Judges.

BEAM, Circuit Judge.

Ana Rosa Ochoa petitions for review of an order of the Board of Immigration Appeals (BIA) entered on November 2, 2007, denying Ochoa's motion to reopen her removal proceedings based upon an alleged ineffective assistance of counsel. Because the BIA's order is precluded from our review, we dismiss the petition.

I. BACKGROUND

Ochoa is a native and citizen of Mexico who entered the United States on or about December 15, 1991. On July 26, 2004, the government initiated removal proceedings against Ochoa by filing a Notice to Appear, charging her with removability. Ochoa conceded removability but filed an application for cancellation of removal.

On January 9, 2006, the Immigration Judge (IJ) orally denied Ochoa's application for cancellation of removal. The BIA affirmed this denial on May 25, 2007. Both the IJ and the BIA determined that Ochoa had good moral character and continuous physical presence in the United States, two elements required for cancellation of removal, but based their denials upon the conclusion that Ochoa failed to show that her removal would result in exceptional and extremely unusual hardship to her qualifying relatives, namely her two United States citizen children.

During the January 9, 2006, hearing before the IJ, Ochoa stated that her son, Guillermo, age seven at the time, suffered from lead poisoning that resulted in learning difficulties. Following this testimony, Ochoa's counsel indicated to the IJ that the issue of Guillermo's poisoning was new to him and requested time to prepare corroborating documents and additional evidence in support of that claim. The IJ asked Ochoa directly why she had not earlier mentioned Guillermo's condition to her attorney and she responded, “I didn't think it was necessary.” The IJ declined counsel's request and proceeded to render its oral decision.

Specifically as to the issue of whether Ochoa's removal would create an exceptional and extremely unusual hardship to her two children who are United States citizens, the IJ held that Ochoa did not meet her burden under the requisite standard. In so holding, the IJ relied in part upon Ochoa's failure to submit any corroborating evidence regarding her assertions about Guillermo's needs and disabilities due to his lead poisoning. Guillermo's condition was not new (her son was diagnosed at the age of two) and there was no evidence regarding economic, political or social conditions in Mexico to augment Ochoa's claim.

The BIA affirmed this ruling, determining that any alleged level of hardship claimed by Ochoa falls short of the exceptional and extremely unusual hardship standard. Ochoa again argued to the BIA that the IJ should have continued her case to permit the submission of evidence concerning the effects of lead exposure on Guillermo, but the BIA reiterated the IJ's conclusion that Ochoa had been given ample time to present such evidence and failed to do so. The BIA especially noted that Ochoa had even failed to present any such evidence before the BIA on appeal. Ochoa did not appeal this May 25, 2007, order of the BIA.

Ochoa did, however, obtain new counsel and sought to reopen her case on July 23, 2007, pursuant to 8 C.F.R. § 1003.2(a) based upon the ineffectiveness of her prior counsel. Ochoa followed the edicts of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988) ¹ and included (1) evidence of a bar complaint she filed against her prior counsel; (2) an affidavit stating the manner in which her prior counsel handled her case; and (3) evidence of her eligibility for cancellation, including general information about the effects of lead poisoning and documentary evidence of Guillermo's diagnosis and treatment, his resulting learning disabilities and the educational disadvantages of special education students in Mexico.

On November 2, 2007, the BIA denied Ochoa's motion to reopen, reiterating Ochoa's own expressed prior belief that the lead poisoning issue was not necessary to her case and noting that the submitted documents indicated that Guillermo's lead levels had diminished and at one point were in the normal range. Specifically discussing the “new evidence” submitted by Ochoa, the Board held that even though it was “troubled by evidence indicating that the child suffers from educational problems stemming from her 9-year-old child's lead poisoning at the age of two, the respondent has failed to demonstrate this evidence was unavailable or could not have been discovered or presented at her former hearing.”

Ochoa petitions for review of the BIA's November 2, 2007, order. ²

II. DISCUSSION

Before reaching the merits of this case, we find ourselves halted by precedent. Noted above, Ochoa filed her motion to reopen with the BIA “pursuant to 8 C.F.R. 1003.2(a)” and requested that the BIA reopen “on their own motion.” The Board, however, may have treated Ochoa's motion under the rubric of 8 C.F.R. § 1003.2(c), which contemplates motions to reopen on the basis of new, material and previously unavailable evidence. This is possible because first the BIA noted that Ochoa's motion is “timely,” a determination pertinent under § 1003.2(c). And, the BIA used Matter of Coelho, 20 I & N Dec. 464 (BIA 1992), as its governing legal standard in evaluating Ochoa's evidence. Matter of Coelho is a case that, in part, discusses the heavy burden laid upon a movant when proffering new evidence in a motion to reopen and did not involve the exercise of the Board's sua sponte authority. Id. at 473. While the Board's treatment of the motion is unclear, and the stated basis for Ochoa's motion is a seemingly technical difference on the surface, the basis is indeed most critical, for it stops us in our tracks today.

In Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc), ³ we held that “the BIA's decision whether to reopen proceedings on its own motion under 8 C.F.R. § 1003.2(a) is committed to agency discretion by law” and is thus unreviewable by an appellate court. In Tamenut, after making this determination we concluded that we “lack[ed] jurisdiction” over Tamenut's challenge to the BIA and we dismissed the petition accordingly. 521 F.3d at 1005. More precisely, the dismissal in Tamenut, while the proper disposition, was due to our inability to review an agency action “committed to agency discretion by law” under § 701(a)(2) of the Administrative Procedure Act (APA), not because we lacked jurisdiction. Id. at 1003.

The APA is not an independent jurisdictional provision. Califano v. Sanders, 430 U.S. 99, 105-06, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA is a procedural statute that provides no substantive requirements but merely provides the framework for judicial review of agency action. Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir.1996). The Supreme Court's recent proscription against “drive-by jurisdictional rulings” compels us to make this distinction in the interest of facilitating the clarity sought by the Court. Reed Elsevier, Inc. v. Muchnick, --- U.S. ----, ----, 130 S.Ct. 1237, 1244, 176 L.Ed.2d 17 (2010) (quotation omitted); see also Oryszak v. Sullivan, 576 F.3d 522, 524-25 (D.C.Cir.2009) (explaining that a federal court has jurisdiction under 28 U.S.C. § 1331 to hear a claim under the APA, but because the APA does not apply to agency action committed to agency discretion by law, a plaintiff who challenges such an action cannot state a claim under the APA and the court will properly grant a motion to dismiss the complaint for failure to state a claim). When a plaintiff complains about an action that is committed to agency discretion by law, it does not mean that a court lacks subject matter jurisdiction over the claim. Instead, it means that there is no law to apply because the court has no meaningful standard against which to judge the agency's unfettered exercise of discretion. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Oryszak, 576 F.3d at 526.

Under these circumstances, we see no way around Tamenut's proscription given Ochoa's express reliance on § 1003.2(a) throughout her filings and argument. Even if the BIA addressed the merits of Ochoa's claim under a § 1003.2(c) analysis, it does not circumvent the posture of the motion and the petition now before us.⁴

Accordingly, we are unable to review the BIA's determination on appeal and we dismiss the petition for review.

COLLOTON, Circuit Judge, concurring in part and dissenting in part.

The parties agree that this court should review the decision of the Board of Immigration Appeals (“BIA”) denying Ana Rosa Ochoa's motion to reopen her removal proceedings. I disagree with the court's contrary conclusion, and I further conclude that the BIA abused its discretion in denying the motion. Therefore, I would remand the case for further proceedings.⁵

An alien may file one motion to reopen removal proceedings as of right, as long as the motion is filed within ninety days after the date on which the final administrative decision is rendered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). We review the BIA's decision on such a motion under a deferential abuse-of-discretion standard. Kucana v. Holder, ---U.S. ----, ----, 130 S.Ct. 827, 834, --- L.Ed.2d ----, ---- (2010). The governing regulations also provide that the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). The decision whether to exercise this sua sponte reopening authority is committed to agency discretion by law within the meaning of the Administrative Procedure Act, 5...