Two circuits recently split on reviewing whether the Board of Immigration Appeals deviated from its settled course of adjudication in denying sua sponte reopening.
May 26, 2020
Jurisdiction in immigration appeals is often complicated. A new wrinkle has arisen in the past two weeks regarding appellate review of decisions denying sua sponte reopening. The Board of Immigration Appeals can reopen removal proceedings in response to a motion or sua sponte. The term sua sponte is somewhat misleading, however, as immigration petitioners often ask the Board to exercise this reopening power. The courts of appeals have held that they generally lack jurisdiction to review the Board’s denial of sua sponte reopening. But most courts of appeals have created an exception to this general rule when a legal or constitutional error underlies the Board’s decision.
In the past two weeks, two courts of appeals have added further nuance to the review of sua sponte reopening. In two cases, immigration petitioners argued that the Board abused its discretion in denying sua sponte reopening because the Board deviated from a settled course of adjudication. That is, the Board’s denial of sua sponte reopening was inconsistent with the Board’s decisions in prior, similar cases. In Lona v. Barr, the Ninth Circuit held that it lacked appellate jurisdiction and could not address this settled-course argument. Less than a week later, in Thompson v. Barr, the First Circuit held it could. At least one other circuit—the Third—has also held that it could review settled-course arguments. A split has accordingly solidified on this issue.
Some background on sua sponte reopening
Under 8 C.F.R. § 1003.2(a), the Board of Immigration Appeals has discretion to reopen removal orders. That power to reopen comes in two forms.
First is via a motion. Before the 1996 reforms to immigration law, there were no time or number limits on these motions to reopen. But those reforms generally restricted petitioners to one motion, which they must file within 90 days of their removal order. If the Board denies a motion to reopen, a court of appeals can review that decision for an abuse of discretion.
Second is the Board’s sua sponte reopening power. When the time has passed for filing a motion to reopen, or if a petitioner has already filed an unsuccessful motion, the Board can still sua sponte reopen removal proceedings. Again, the term is misleading. Despite being called sua sponte reopening, the issue appears to normally arise after a petitioner requests that the Board excercise its sua sponte power.
As a general rule, the courts of appeals lack jurisdiction to review the Board’s decision to deny sua sponte reopneing. The courts have reasoned that the decision is completely discretionary, such that there are no “judicially manageable standards” for evaluating the decision. In other words, there’s no law for the courts of appeals to apply.
Several courts of appeals have recognized an exception to this general rule when the Board commits a constitutional or legal error in denying sua sponte reopening. When that sort of error underlies the Board’s decision, meaningful standards exist for the courts of appeals to review that portion of the decision. And under 8 U.S.C. § 1252(d), the courts of appeals have jurisdiction to address constitutional or legal issues when reviewing removal orders, even when those orders involved the denial of discretionary relief. Several courts of appeals have accordingly concluded that they have jurisdiction to review whether a legal or constitutional error underlies the Board’s decision.
The split on settled-course review
A further nuance asks if the courts of appeals can review whether the Board’s denial of sua sponte reopening was inconsistent with its decisions in other cases. Courts have called this type of review “settled-course review,” as a petitioner argues that the Board deviated from its settled course of adjudication and thereby abused its discretion.
Lona v. Barr
In Lona v. Barr, the Ninth Circuit held that it lacked jurisdiction to address this issue. The petitioner in Lona had been removed to Mexico due to what the immigration courts deemed to be an aggravated felony. A few years later, she sought sua sponte reopening. She argued that several intervening Ninth Circuit decisions had fundamentally changed the law governing what counts as an aggravated felony. But the Board declined her request. The petitioner then sought review in the Ninth Circuit. She argued (among other things) that similar changes in law had qualified as “exceptional circumstances” warranting sua sponte reopening in the past. According to the petitioner, the Board had thus deviated from its settled course of adjudication by not granting reopening in her case.
The Ninth Circuit held that the denial of sua sponte reopening was not a legal or constitutional error that it had jurisdiction to review. The court surmised that an agency’s break from prior practice is not necessarily “irrational or improper,” and agencies do not need to explain apparent inconsistencies in exercising discretion. At its root, the settled-course argument was an argument “that the [Board] should have exercised its sua sponte power”:
In our opinion, “settled course” review is abuse-of-discretion review, regardless of when undertaken. It asks that we evaluate the [Board]’s exercise of its sua sponte authority in a given case against its decisions in past cases to consider whether the [Board] may have irrationally departed from its settled practice.
(Some quotation marks omitted.) And the court lacks jurisdiction to weigh the wisdom of the Board’s decision.
Thompson v. Barr
Less than a week later, in Thompson v. Barr, the First Circuit held that it could review whether the Board deviated from a settled course of adjudication. The petitioner in Thompson had been ordered removed due to a Connecticut criminal conviction. He was later pardoned by the Connecticut Board of Pardons and Parole. He accordingly asked the Board to reopen his removal order to obtain relief under immigration’s pardon-waiver clause. The Board refused. It said that the petitioner had not been pardoned by an “executive body” (as required for relief) but had instead been pardoned by a legislative body. The petitioner sought review in the First Circuit, arguing that the Board had deviated from its settled line of decisions accepting Connecticut pardons (as well as functionally identical ones from Georgia).
The First Circuit held that it had jurisdiction to review the Board’s denial of sua sponte reopening. The exact holding is not precisely clear.
In some parts, the court seems to hold only that it has jurisdiction to review legal and constitutional errors that underly a denial of sua sponte relief. The First Circuit apparently had not held as much before Thompson. And the Board’s conclusion that Connecticut pardons did not count was “a legal rule limiting discretion that [the court of appeals is] well-positioned to review.” So Thompson might be read as holding only that the Board committed a legal error in deeming Connecticut pardons insufficient, and the First Circuit had jurisdiction to review this type of error.
But other parts of the opinion seem to embrace settled-course review. The First Circuit noted that the Board had, through its decisions, constrained its discretion by deeming Connecticut and other, similar pardons sufficient for pardon-waiver purposes. An unexplained, arbitrary departure from that line of decisions would be an abuse of discretion. And the court of appeals could review for such abuse.
So Thompson appears to hold that the courts of appeals can review whether the Board deviated from its prior decisions in denying sua sponte relief. Although the decision conflicts with the Ninth Circuit’s decision in Lona, Thompson did not mention Lona. But I would guess that is due to the close proximity of the opinions; the Thompson opinion was probably being finished (if it wasn’t already finished) when the Ninth Circuit decided Lona.
Other circuits on settled-course review
At least one other court of appeals has weighed in on jurisdiction to review settled-course arguments. In Sang Goo Park v. Attorney General, the Third Circuit reasoned that the Board could, through a settled course of adjudication, establish “a general policy by which its exercise of discretion will be governed.” The Board’s established practice limits its discretion and creates a standard against which the court of appeals can evaluate the Board’s decision. And an irrational departure from that standard would be an abuse of discretion.
There’s also an en banc Eighth Circuit opinion that appears to touch on the subject. In Tamenut v. Mukasey, the Eighth Circuit held that it lacked jurisdiction to review denials of sua sponte reopening because that decision is committed to the Board’s discretion. And the court said that this was true even if a settled course of adjudication could establish a standard for reviewing the Board’s decision:
Assuming that a settled course of adjudication could establish a meaningful standard by which to measure the agency’s future exercise of discretion, the mere fact that the [Board] has acknowledged the existence of its authority to reopen sua sponte in what it deems to be “exceptional situations” is not sufficient to establish a meaningful standard for judging whether the [Board] is required to reopen proceedings on its own motion. Therefore, we hold that the [Board]’s decision whether to reopen proceedings on its own motion pursuant to 8 C.F.R. § 1003.2(a) is committed to agency discretion by law.
Tamenut thus appears to reject appellate review of sua sponte denials entirely, not just those dealing with settled-course review.
It accordingly seems that a split has solidified on jurisdiction to review settled-course arguments.
Lona v. Barr, 2020 WL 2507362 (9th Cir. May 15, 2020), available at the Ninth Circuit and Westlaw.
Thompson v. Barr, 2020 WL 2570167 (1st Cir. May 21, 2020), available at the First Circuit and Westlaw.