Issues
Does a circuit court have jurisdiction to review a Board of Immigration Appeals’ rejection of a petitioner’s request to equitably toll the 90-day deadline on his motion to reopen removal proceedings on the basis of ineffective assistance of counsel?
The Supreme Court will determine whether the courts of appeals have jurisdiction to review a non-citizen’s request that the Board of Immigration Appeals (“BIA”) equitably toll the 90-day filing deadline on the non-citizen’s motion to reopen the non-citizen’s removal proceeding due to ineffective assistance of counsel. Peterson, arguing by Court appointment in support of the lower court’s judgment, argues that the Fifth Circuit properly characterized Mata’s request to reopen his removal proceeding as an invitation for the BIA to reopen the proceeding sua sponte, and that the Fifth Circuit lacks jurisdiction to review the BIA’s discretionary decision. However, Mata contends that the Fifth Circuit erred in construing his request for equitable tolling as a request for the BIA to reopen the proceeding sua sponte, and that Congress specifically grants courts of appeals the jurisdiction to review final orders of removal and BIA decisions on motions to reopen via statute. Holder agrees with Mata that the Fifth Circuit mischaracterized Mata’s request to reopen and that Congress provided courts of appeals a statutory basis upon which to review final orders of removal and BIA decisions on motions to reopen. Holder further contends that courts should apply a deferential abuse-of-discretion standard in reviewing agency determinations. The Supreme Court’s ruling implicates the due process rights of non-citizens and the fairness and substantive legality of the immigration system.
Questions as Framed for the Court by the Parties
Whether the court of appeals has jurisdiction to review the Board of Immigration Appeals’ decision denying a request for equitable tolling of the ninety-day statutory period for filing a motion to reopen removal proceedings as a result of ineffective assistance of counsel.
Facts
The United States ordered removal of Noel Reyes Mata, a native and citizen of Mexico, from the county in 2010. Mata filed a timely petition for appeal of his order of removal with the Board of Immigration Appeals (“BIA”). Mata’s lawyer, however, failed to file an appellate brief with the BIA. As a result, the BIA dismissed Mata’s appeal. Subsequently, Mata filed a motion to reopen his removal proceedings based on a claim of ineffective assistance of counsel. Specifically, Mata petitioned that the BIA equitably toll the applicable filing period or exercise its authority to reopen his proceeding sua sponte because he was not aware of his former counsel’s negligence until after the 90-day deadline had elapsed. The BIA, however, denied Mata motion for various reasons: (1) the motion was filed 25 days after the statutory 90-day deadline for motions to reopen, (2) the filling could not be equitably tolled because Mata did not show prejudice, and (3) Mata did not file a proposed appellate brief with the motion to reopen. Mata also filed a motion to reconsider to the BIA, but the BIA also denied this motion.
Mata petitioned to have the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) review the BIA’s decision. Mata argued that “the BIA should have equitably tolled the filing period because his attorney’s failure to file a brief to the BIA deprived him of his right to appeal and violated his due-process rights.” The Fifth Circuit dismissed Mata’s petition on the grounds that the Fifth Circuit did not have jurisdiction to overturn the BIA’s exercise of discretion to reopen removal proceedings sua sponte. The court explained that Mata’s “request for equitable tolling on the basis of ineffective assistance of counsel is construed in the Fifth Circuit as an invitation for the BIA to exercise its discretion to reopen the removal proceedings sua sponte.” The Fifth Circuit further stated that there was no meaningful standard for the Fifth Circuit to judge the BIA’s exercise of discretion.
Mata filed a petition for writ of certiorari requesting that the Supreme Court review and reverse the Fifth Circuit’s opinion. Mata argues that the Fifth Circuit erred in assuming that a petition for equitable tolling on the basis of ineffective assistance of counsel implies an invocation of the BIA’s sua sponte power. Mata further contends that the Fifth Circuit is the only federal court of appeals to not recognize its power to “review an alien’s request for equitable tolling of a statutory motion to reopen under [8 C.F.R. § 1003.2(c)(2) (“§ 1003.2(c)(2)”)—ineffective assistance of counsel].”
Analysis
The Supreme Court will decide whether the courts of appeals have jurisdiction to review a decision by the Board of Immigration Appeals (“BIA”) to deny a request to equitably toll the 90-day statutory period for filing a motion to reopen removal proceedings due to ineffective assistance of counsel. This case presents a unique scenario where both parties, Mata and Eric Holder, Attorney General of the United States, agree that the Supreme Court should reverse and remand the case for further proceedings. ; Mata argues that the Fifth Circuit erred in construing Mata’s request for equitable tolling as a request for the BIA to reopen the proceeding sua sponte and claims that Congress specifically conferred jurisdiction to the courts of appeals over petitions for review of final orders of removal and BIA decisions on motions to reopen removal proceedings under 8 U.S.C. § 1252(a)(1) and § 1252(b)(6). Holder agrees with Mata that the Fifth Circuit erred in construing Mata’s request to reopen his removal proceeding and that Congress provided the courts of appeals with jurisdiction to review the BIA’s final orders and decisions. Holder further argues that the Fifth Circuit should review the BIA’s decision under a deferential abuse-of-discretion standard. In opposition, Peterson, arguing as amicus by appointment of the Supreme Court in support of the judgment, contends that the Fifth Circuit properly construed Mata’s request to reopen his removal proceeding as an invitation to the BIA to reopen the proceeding sua sponte, and that the Fifth Circuit lacks jurisdiction to review the BIA’s decision regarding whether to exercise its sua sponte power.
DID THE FIFTH CIRCUIT ERR IN CONSTRUING MATA’S REQUEST?
Peterson argues that the Fifth Circuit properly construed Mata’s request to reopen his removal proceeding as an argument that the BIA should reopen the proceeding sua sponte. According to Peterson, if a party seeks relief through procedures unavailable to the party, the courts may treat the party’s request “as invoking a different procedure through which the relief may be available.” Peterson argues that equitable tolling does not apply to deadlines for filing motions to reopen because § 1229a(c)(7)(C)(i) makes no reference to such tolling. Moreover, Peterson argues, the claim that there is a presumption of equitable tolling is applicable only to statutes of limitations, and filing deadlines are not properly considered to be statutes of limitations. Peterson explains that statutes of limitations are substantive because they determine whether lawsuits may be brought at all, whereas filing deadlines are simply procedural steps after a lawsuit has already commenced. Peterson also contends that the BIA’s decisions do not support the conclusion that statutory deadlines are subject to equitable tolling. According to Peterson, the BIA has no precedential decisions interpreting the statute as permitting equitable tolling. Further, Peterson claims that the lack of ambiguity in the statute means Congress did not intend for the BIA to create its own rules. Peterson concludes that, since equitable tolling does not apply to statutory deadlines for filing a motion to reopen, the BIA may only reopen removal proceedings under its sua sponte power.
Mata and Holder counter that the Fifth Circuit erred in construing Mata’s request to reopen as an invitation for the BIA to reopen the proceeding sua sponte. Mata argues that equitable tolling provides a basis for filing an untimely motion under § 1229a(c)(7)(C)(i) because the doctrine—in effect—delays the “running of the clock” when a party would be inequitably penalized for not filing a motion. According to Mata, courts of appeals hold that equitable tolling decisions should not be determined by the BIA’s regulatory power to reopen sua sponte, but rather by a party’s statutory right to reopen under § 1229a(c)(7)(C)(i). Similarly, Holder argues that the Fifth Circuit erred because it did not review the BIA’s determination under the grounds upon which the BIA based its decision. According to Holder, the Fifth Circuit erred by converting the agency’s decision into a hypothetical decision that the Fifth Circuit could no longer review. Holder also notes that the BIA considers requests for equitable tolling as distinct from invitations that the BIA exercise its sua sponte power, and alleges that the Fifth Circuit failed to realize the difference between the two concepts in the BIA’s decisions. Indeed, Holder claims, the BIA’s authorities to equitably toll the filing deadline for a party’s motion to reopen and to removal proceedings sua sponte are “logically and doctrinally distinct.” Specifically, Holder explains that tolling relates to the party’s own motion to reopen under § 1229a(c)(7)(C)(i), whereas the BIA may reopen cases “on its own motion” whenever it so desires under 8 C.F.R. § 1003.2(a).
DOES THE FIFTH CIRCUIT HAVE JURISDICTION OVER THE BIA’S DECISION?
Peterson contends that the Fifth Circuit lacks jurisdiction to review the BIA’s decision not to reopen the proceeding sua sponte. Peterson claims that the BIA’s sua sponte regulation does not vest a private right of action, and that “no judicially manageable standards exist for reviewing such a decision, which is committed to agency discretion by law.” According to Peterson, BIA decisions have not created judicially manageable standards, and thus the BIA is not required to “apply principles of equitable tolling in exercising its discretion.” Peterson maintains that, although the BIA has established procedural requirements for claiming ineffective assistance of counsel, the BIA is not required to grant all motions that satisfy those procedural requirements. Moreover, Peterson claims that the Supreme Court has never found that an agency may, through the course of adjudication, transform an unreviewable decision into a reviewable one.
Mata and Holder counter that the Fifth Circuit has statutory authority to review the BIA’s decision to deny Mata’s motion to reopen the proceeding. Mata and Holder claim that Congress authorized the courts of appeals to review final orders of removal under § 1252(a)(1), and that § 1252(b)(6) expressly grants jurisdiction to the courts of appeals to review BIA decisions on motions to reopen. Mata further argues that there is a “strong presumption” that Congress expects courts to review administrative actions.Mata also adds that “clear and convincing” evidence is required in order to overcome this presumption. Mata claims that the Supreme Court has previously found “no . . . evidence” of congressional intent to foreclose judicial review of motions to reopen. Holder adds that the BIA’s decision to reopen the proceeding is within the BIA’s discretion and should therefore be reviewed under a deferential abuse-of-discretion standard. Holder claims the abuse-of-discretion standard applies in order to protect the BIA’s “broad discretion” in its determinations.
Discussion
The Supreme Court has the opportunity to decide if the courts of appeals have jurisdiction to review the BIA’s decision to deny a request to equitably toll the ninety-day deadline on a motion to reopen as a result of ineffective assistance of counsel under § 1003.2(c)(2). This case presents a unique scenario where both parties, Mata and Holder, agree that the Supreme Court should reverse and remand the case for further proceedings. ; The Court has appointed amicus William Peterson to argue in support of the Fifth Circuit’s holding. The Supreme Court’s ruling implicates the due process rights of non-citizens and the fairness and substantive legality of the immigration system.
IMMIGRANTS’ DUE PROCESS RIGHTS
The American Immigration Council (“AIC”), in support of Mata, argues that denying courts of appeals the jurisdiction to review the BIA’s decision to deny a request to equitably toll the 90-day deadline on a motion to reopen as a result of ineffective assistance of counsel impairs immigrants’ rights to adequate remedies when they fall victim to ineffective assistance of counsel.The AIC explains that there are thousands of immigration lawyers and individuals unlawfully practicing immigration law, who often defraud their clients. Specifically, these incompetent immigration practitioners harm immigrants by ineffectively representing them and causing avoidable negative outcomes in their immigration proceedings. The AIC contends that when immigrants are harmed in this manner, they are effectively being denied their day in court. The AIC explains that many immigrants’ “hopes for a life in the United States with their families often depend on Article III review to ensure their day in court.” Further, the AIC argues that all “all courts guard against erroneous denials of reopening based on ineffective assistance of counsel or other extraordinary circumstances beyond their control.” . Thus, the AIC concludes that courts of appeals must have the jurisdiction to review the BIA’s decision to deny a request to equitably toll the 90-day deadline on a motion to reopen as a result of ineffective assistance of counsel in order to ensure adequate justice in the immigration system. The AIC also contends that the current 90-day filing deadline for removal appeals is unjust. Relatedly, the AIC explains that the proper and lawful process of appealing such a removal is time-consuming and may inevitably take more than 90 days. The AIC further explains that there are numerous factual and legal barriers to bringing a successful claim of ineffective assistance of counsel and that these barriers will be difficult to overcome within 90 days.
Peterson, in support of the Fifth Circuit’s judgment, contends that an immigrant’s right to adequate remedies will not be impaired because the BIA has not historically afforded equitable tolling remedies for these statutory deadlines. In fact, Peterson argues that there is no BIA precedent allowing 8 U.S.C. § 1229a(c)(7)(C)(i) (“§ 1229a(c)(7)(C)(i)”) —which states that a “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, permitted such equitable tolling”—to permit equitable tolling. Peterson also adds that, since Congress’s language in the statute is clear, the BIA should not be provided with the opportunity to re-interpret the statute to provide immigrants with new and unintended due process rights.
FAIRNESS AND SUBSTANTIVE LEGALITY OF THE IMMIGRATION SYSTEM
In support of Mata, the National Immigrant Justice Center (“NIJC”) argues that motions to reopen for immigration cases have historically served an important function in the legal system.Specifically, the NIJC explains, “[m]otions to reopen, and judicial review thereof, continue to serve the important purpose of ensur[ing] a proper and lawful disposition of a removal matter.” The NIJC contends that, even in discretionary matters, judicial review is necessary to ensure “the fairness and substantive legality of the system.” The NIJC further supports its claim by explaining that removal matters can have very weighty implications, such as the loss of property and life.
Peterson, in support of the Fifth Circuit’s judgment, contends that the fairness and legality of the immigration system will not be impaired because the circuit courts don’t have jurisdiction to review the BIA’s decision not to reopen the proceeding sua sponte. Specifically, Peterson explains that there are “no judicially manageable standards . . . for reviewing such a decision, which is committed to agency discretion by law.” Peterson further adds granting this jurisdiction would impair the immigration system because, if the Supreme Court transforms BIA’s currently unreviewable decision to a reviewable one by virtue of non-binding precedent, agencies would be discouraged from adequately “explaining their decisions.” In particular, Peterson argues that, if dicta of prior decisions based on discretionary authority is open to be used as future binding standards, agencies will be reluctant to explain their fact-specific decisions out of fear that they it will become binding precedent.
Conclusion
The Supreme Court has the opportunity to decide if the federal courts of appeals have jurisdiction to review BIA decisions to deny a request to equitably toll the 90-day deadline on a motion to reopen as a result of ineffective assistance of counsel. Peterson, amicus appointed by the Court to argue the case, contends that the Fifth Circuit properly construed Mata’s request to reopen his removal proceeding as an invitation to the BIA to reopen the proceeding sua sponte, and that the courts of appeals lack jurisdiction to review the BIA’s decision whether to exercise its sua sponte power. However, Mata contends that the Fifth Circuit erred in assuming that a petition for equitable tolling, on the basis of ineffective assistance of counsel, implies an invocation of the BIA’s sua sponte power and claims that Congress specifically conferred jurisdiction to the courts of appeals over petitions for review of final orders of removal and BIA decisions on motions to reopen removal proceedings. Holder agrees with Mata that the Fifth Circuit erred in construing Mata’s request to reopen his removal proceeding and that Congress provided the courts of appeals with jurisdiction to review the BIA’s final orders and decisions. Holder further argues that the Fifth Circuit should review the BIA’s decision under a deferential abuse-of-discretion standard. The Supreme Court’s ruling implicates the due process rights of non-citizens and the fairness and substantive legality of the immigration system.
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Additional Resources
- Daniel M. Kowalski: Justices Told CA5 Is Solo On Immigration Appeal Stance: Mata v. Holder, LexisNexis (March 14, 2015).