Thompson v. Barr

• Decision Date: 21 May 2020
• Docket Number: No. 18-1823,18-1823
• Parties: Richard Marvin THOMPSON, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

959 F.3d 476

Richard Marvin THOMPSON, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 18-1823

United States Court of Appeals, First Circuit.

May 21, 2020

Gregory Romanovsky, Brookline, MA, with whom Romanovsky Law Offices was on brief, for petitioner.

William M. Tong, Attorney General of Connecticut, with whom Jane Rosenberg, Assistant Attorney General, and Clare Kindall, Solicitor General, were on brief, as amicus curiae for the State of Connecticut.

Trina Realmuto, Washington, DC, Kristin Macleod-Ball, Emma Winger, and American Immigration Council, as amicus curiae for the American Immigration Council.

Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Keith I. McManus, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Torruella, Thompson, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioner Richard Marvin Thompson ("Thompson") appeals the Board of Immigration Appeals' ("BIA") denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2) (A)(vi) (the "Pardon Waiver Clause"), because a pardon issued by the Connecticut Board of Pardons and Paroles is "not effective for purposes of establishing entitlement to" a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.

I.

Thompson is a citizen of Jamaica. In 1997, at the age of fourteen, he was admitted to the United States as a lawful permanent resident. When he was seventeen years old, Thompson was arrested and charged with second-degree assault, a felony in violation of Connecticut General Statute § 53a-60, to which he pleaded guilty in Connecticut state court in 2001. He received a suspended sentence and three years' probation. Without incident, Thompson completed the terms of his probation, received his GED, and worked for over ten years as a commercial operator.

Based on his 2001 conviction, in March 2012, the United States Department of Homeland Security initiated removal proceedings against Thompson charging him as removable pursuant to: (1) 8 U.S.C. § 1227(a)(2)(A)(i), for having committed a crime of moral turpitude within five years after admission and for which a term of imprisonment of one year or more could be imposed; and (2) 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an aggravated felony. Prior to his deportation hearing, Thompson applied to the United States Citizenship and Immigration Services ("USCIS") for derivative citizenship through his U.S.-citizen father. USCIS denied the application, and an Immigration Judge adopted the USCIS's reasoning, later affirmed by the BIA and this Court in Thompson v. Lynch, that Thompson did not derive citizenship from his father because Thompson's parents had never been legally married and were thus never legally separated as required by 8 U.S.C. § 1432(a) (repealed 2000). See Thompson v. Lynch, 808 F.3d 939, 940-41 (1st Cir. 2015). Thompson subsequently filed two unsuccessful motions to reopen with the BIA.

On March 14, 2018, detained and appearing pro se, Thompson filed the present motion to reopen and terminate his removal proceedings. Thompson's motion requested that the BIA exercise its sua sponte authority to reopen proceedings because he had been granted a full and unconditional pardon by the Connecticut Board of Pardons and Paroles for his 2001 conviction, qualifying him for relief under the Pardon Waiver Clause.

On August 7, 2018, the BIA denied the motion. The BIA found Thompson's motion untimely and number-barred, see 8 C.F.R. § 1003.2(c), and "decline[d] to exercise [its] sua sponte authority." The BIA explained that Thompson had failed to show that he was eligible for a pardon waiver, which would otherwise automatically waive his removability. The BIA acknowledged that it "h[as] long recognized that in some states, the supreme pardoning power may rest with some other executive body," but that "the [Connecticut] Board of Pardons and Paroles is a legislatively derived body." Therefore, it reasoned that "even though the Board of Pardons and Paroles is the supreme pardoning power in Connecticut, that power is not executively derived, and so it is not effective for purposes of establishing entitlement to [a pardon waiver under] section 237(a)(2)(A)(vi) of the [INA]." The BIA added that Thompson's uncertified photocopy of his pardon failed to meet "his heavy burden" for reopening. Thompson timely appealed.

II.

A. Standard of Review and Jurisdiction

We begin by addressing our jurisdiction to review Thompson's claim that the BIA committed legal error when it denied his motion to reopen sua sponte. We first note that "a motion to reopen removal proceedings is a disfavored tool." Gyamfi v. Whitaker, 913 F.3d 168, 172 (1st Cir. 2019) (quoting Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) ). To the extent we have jurisdiction, we generally review the BIA's decision on a motion to reopen for abuse of discretion. Id.; see 8 U.S.C. § 1252(a)(1), (a)(5). An abuse of discretion occurs if the BIA "committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) ). Within this deferential framework, "[w]e review questions of law de novo." Bolieiro v. Holder, 731 F.3d 32, 36 (1st Cir. 2013) (alterations ours).

The BIA possesses discretionary authority to grant or deny a motion to reopen pursuant to 8 C.F.R. § 1003.2(a). The regulation states:

The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. ... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

8 C.F.R. § 1003.2(a).

Until Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104–208, Div. C., 110 Stat. 3009–546, there were no time limits for requesting the reopening of immigration proceedings. By instituting time limits and number restrictions, IIRIRA "transform[ed] the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien." Kucana v. Holder, 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (alteration in original) (quoting Dada v. Mukasey, 554 U.S. 1, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) ). The statute codified the right to file one motion to reopen within ninety days of the date of entry of a final order of removal, with a few narrow exceptions. See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i). A motion to reopen that comports with the time and number requirements is subject to judicial review under the standard laid out above. See Guerrero v. Holder, 766 F.3d 122, 126 (1st Cir. 2014).

When a motion falls outside of the timing and number restrictions imposed by IIRIRA and does not fit into one of the statutory exceptions, the only way for the petitioner to reopen proceedings is to request that the BIA reopen them sua sponte, i.e., "on its own motion" (nomenclature that we admit is confusing). See Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir. 2018) (citing 8 C.F.R § 1003.2(a) ); Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016). The BIA will only grant a motion sua sponte if it is "persuaded that the respondent's situation is truly exceptional." In re G–D–, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999).

In Luis v. I.N.S., we held that we lacked jurisdiction to review the BIA's decision on a motion to reopen sua sponte "because the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion." 196 F.3d 36, 40 (1st Cir. 1999). This is because, in the absence of "judicially manageable standards," we "would have no meaningful standard against which to judge the agency's exercise of discretion." Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ). See 5 U.S.C. § 701(a)(2) (disallowing judicial review of agency action when said action "is committed to agency discretion by law"). We have affirmed this general rule from Luis many times. See Gyamfi, 913 F.3d at 176 ; Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir. 2018) ; Ramírez-Matías v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017) ; Guerrero, 766 F.3d at 126 ; Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010). Still, we have never decisively answered the questions presented here: whether this Court has jurisdiction to review motions to reopen sua sponte for the limited purpose of rectifying legal or constitutional errors by the BIA about whether it has the authority to exercise its discretion or whether 8 U.S.C. § 1252(a)(2) allows this Court to assert jurisdiction over a challenge to such an error, because it is a legal one. See Lemus, 900 F.3d at 19. Let us explain.

In 2005, several years after we announced our holding in Luis, Congress passed the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302. See Ramírez-Matías, 871 F.3d at 68. While IIRIRA had earlier barred judicial review of "most discretionary decisions or actions of the Attorney General and Secretary of Homeland Security ... under a particular statutory subchapter," Bonilla, ...