Maylen Dable v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 13, 2019
• Docket: 19-3011
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0617n.06

Nos. 18-3037, 19-3011

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 13, 2019 DEBORAH S. HUNT, Clerk MAYLEN PANAFLOR DABLE, ) ) Petitioner, ) ON PETITION FOR REVIEW OF ) ORDERS OF THE BOARD OF v. ) IMMIGRATION APPEALS ) WILLIAM P. BARR, Attorney General, ) OPINION ) Respondent. )

Before: MOORE, CLAY, and SUTTON, Circuit Judges.

MOORE, J., delivered the opinion of the court in which CLAY, J., joined, and SUTTON, J., joined in all but footnote 6 (pp. 8–9) of the majority opinion.

KAREN NELSON MOORE, Circuit Judge. In these partially consolidated cases,

Petitioner Maylen Panaflor Dable seeks review of two decisions by the Board of Immigration

Appeals (“BIA”) denying her motions to reopen her removal proceedings.1 Because we lack

jurisdiction to review the BIA’s denial of her first motion to reopen, requesting that the BIA

exercise its discretion to reopen her proceedings sua sponte, we dismiss Dable’s petition in Case

No. 18-3037. We dismiss her petition in Case No. 19-3011 for the same reason. We cannot

consider her argument that her second motion to reopen was subject to equitable tolling until

Pereira v. Sessions, 138 S. Ct. 2105 (2018), was decided because she failed administratively to

1 Due to the overlapping factual and legal nature of Dable’s cases, we issue one combined decision, which will be docketed under both case numbers. Nos. 18-3037, 19-3011, Dable v. Barr

exhaust this argument. Thus, we must treat the second BIA decision as one declining to exercise

its discretion to reopen her proceedings sua sponte, which we lack jurisdiction to review.

I. BACKGROUND2

Dable is a citizen of the Philippines, who in 2001 was admitted to the United States with a

one-year H-2B nonimmigrant visa. Administrative Record (“A.R.”) at 26. It appears that Dable

was the victim of a scheme where individuals obtained the visa for her and purported to offer her

a three-year work contract in the United States, renewable every six months, in exchange for

$3,500. See id. at 159. After the first six months, her contract was not renewed. Id. Dable moved

to Michigan, hoping to find a reputable employer to file for a new work visa for her. See id. But

Dable was not so lucky, and she overstayed her visa and worked without authorization. Id. at 26.

In May 2004, Dable was detained during a trip to visit her brother. Id. at 157. Because

she had overstayed her visa, she was charged as a deportable alien present in violation of 8 U.S.C.

§ 1227(a)(1)(B). Id. at 26. The notice to appear, which detailed the charge, provided that the date

of the hearing was “on a date to be set” and “at a time to be set.” Id. Eleven days later, she received

a notice of hearing from the immigration court that provided a date, time, and location for her

removal proceedings. Id. at 278. After various rescheduling and continuances, as well as a change

of venue, Dable had a hearing on August 25, 2004 in Detroit, Michigan. Id. at 261–76. It is

undisputed that Dable conceded removability. The Immigration Judge (“IJ”) ordered her removed

and granted her voluntary departure; Dable had until December 23, 2004 to return to the

Philippines. Id. at 259–60.

2 We cite the administrative record in Case No. 19-3011, which includes the administrative record in Case No. 18-3037.

2 Nos. 18-3037, 19-3011, Dable v. Barr

However, Dable continued without authorization to work to support her family in the

Philippines and pay off her debts. Id. at 158. In April 2005, she met her husband, Dari Ray Fritz,

and in December 2006, the couple married. Id. at 167. Dable and Fritz have three living children;

their first child died a month after birth due to a “[r]are [c]hromosomal [d]isorder.” All three living

children have ongoing medical issues, and Dable is the cornerstone of their care because of Fritz’s

atypical work schedule. Id. at 162–63.

A. Basis of Petition in Case No. 18-3037

Dable and Fritz attempted to address Dable’s immigration status. Fritz is a United States

citizen, see id. at 234, which allowed him to file an I-130 Immigration Petition for Alien Relative

for Dable. Id. at 169. It was approved in July 2011. The couple filed an I-485 Application to

Adjust Status for her in March 2012,3 but the U.S. Citizenship and Immigration Services

(“USCIS”) denied her application. Id. at 214. USCIS determined that it lacked jurisdiction to

adjust Dable’s status because she was in removal proceedings; only the IJ had jurisdiction to adjust

her status.4 Id.

Dable filed an untimely motion to reopen her removal proceedings on May 2, 2017. Id. at

147. She urged the IJ to exercise his discretion to reopen her proceedings sua sponte due to her

approved I-130 and her statutory eligibility for adjustment of status, which were unavailable to her

at the time of her removal hearings in 2004. Dable also argued that that the IJ should exercise his

3 Approval of an I-130 Petition does not necessarily give applicants status in the United States; it “is only the first step in helping an eligible relative immigrate to the United States.” I-130, Petition for Alien Relative, U.S. CITIZENSHIP AND IMMIGRATION SERVS. (Oct. 28, 2019), https://www.uscis.gov/i-130. An approved I-485 Application will lead to status in the United States. See id. 4 USCIS has jurisdiction to adjudicate the adjustment of applications of some arriving noncitizens, while IJs, “subject to review by the [BIA], decide adjustment applications for most noncitizens who are in removal proceedings.” Rais v. Holder, 768 F.3d 453, 455–56 (6th Cir. 2014) (alteration in original) (quoting Marrakchi v. Napolitano, 494 F. App’x 877, 887 (10th Cir. 2012) (Lucero, J., dissenting)).

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discretion to reopen her case because, among other positive personal factors, the BIA historically

granted such motions where the object was to seek adjustment of status. The government opposed

Dable’s motion, arguing that she had “not alleged the rare and extraordinary circumstances that

the [BIA] has repeatedly stated are required for such a reopening.” Id. at 137. The IJ denied

Dable’s motion in June 2017, reasoning that she had not demonstrated “an exceptional situation,”

but that even if she had, the IJ would decline to exercise his discretion because she “affirmatively

chose to remain in the country without authorization,” “failed to take any action until recently” to

address her status, and “any positive equities in [Dable’s] case were largely accumulated after she

chose to remain in the United States past the authorized period given for her to voluntarily depart

the country.” Id. at 134–35.

On appeal to the BIA, Dable argued that the IJ abused his discretion because he failed to

explain his reasoning adequately, was biased given the evidence in the record that any delay was

not due to her own lack of diligence, did not address the deteriorating conditions in the Philippines,

and departed from an historical practice of granting motions under similar circumstances. Id. at

100–06. The government filed a motion for summary affirmance. Id. at 90. In December 2017,

the BIA dismissed her appeal, stating that it agreed with the IJ that Dable had not presented

evidence demonstrating an exceptional situation. Id. at 85. Dable seeks review of this 2017 BIA

decision. No. 18-3037, Petition (“Pet. I”).

B. Basis of Petition in Case No. 19-3011

Dable filed a Motion to Rescind with the BIA on June 29, 2018. A.R. at 18–23. We agreed

to hold Dable’s petition in Case No. 18-3037 in abeyance so that she could file a motion with the

BIA in light of Pereira. No. 18-3037, Order Holding in Abeyance (Aug. 20, 2018). Dable asked

4 Nos. 18-3037, 19-3011, Dable v. Barr

the BIA to find her removal order void, rescind the order, and dismiss the proceedings. A.R. at

18–23. She argued that under Pereira, the IJ never had jurisdiction over her removal proceedings

because the notice to appear lacked the date and time of those proceedings and this defect could

not be cured by a subsequent notice of hearing providing that information. In the alternative, she

asked the BIA to rescind the order and remand her case so that the IJ could consider her application

for cancellation of removal because Pereira at least demonstrated that the stop-time rule was not

triggered by a notice of hearing that cured a defective notice to appear, meaning that she had

accrued enough time in the United States to be eligible for cancellation of removal. The

government opposed her motion to rescind, but only on the basis of her jurisdictional argument.

See id. at 5–12.

In December 2018, the BIA denied her motion, which it construed as a motion to reopen

removal proceedings sua sponte. Id. at 3–4. The BIA concluded that Pereira did not foreclose its

decision that the two-step process consisting of a deficient notice to appear and a curative notice

of hearing vested the immigration court with jurisdiction. It also denied her motion based on her

purported eligibility for cancellation of removal because, assuming the IJ had jurisdiction but that

the time-stop rule was not triggered by the two-step process, she accrued time only until her valid

removal order was issued three years after she arrived. Id. at 4. Dable filed a second petition

seeking review of this 2018 BIA decision. No. 19-3011, Petition (“Pet. II”). The Retired

Immigration Judges and Former Members of the Board of Immigration Appeals filed an amicus

brief in this case.

Dable also filed a petition for an initial en banc hearing, asking us to reconsider our

decisions in Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018), and Santos-Santos v.

5 Nos. 18-3037, 19-3011, Dable v. Barr

Barr, 917 F.3d 486 (6th Cir. 2019). No. 19-3011, Initial En Banc Pet. (May 6, 2019). She filed

additional citations, one pointing to Matter of Mendoza-Hernandez, 27 I & N Dec. 520 (BIA 2019)

(en banc), No. 19-3011, First Add’l Citation (May 6, 2019), and another pointing to Lopez v. Barr,

925 F.3d 396 (9th Cir. 2019), and Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), No. 19-

3011, Second Add’l Citation (May 22, 2019). We denied this petition. No. 19-3011, Order Den.

Initial En Banc Pet. (June 18, 2019).

C. Shared Procedural History

We ordered that these cases be partially consolidated so that the same panel would consider

both petitions. Nos. 18-3037/19-3011, Order Granting Mot. to Consolidate (Mar. 11, 2019). Dable

filed another motion to consolidate her cases, this time with other cases relying on Pereira in

seeking review of BIA decisions denying relief. Nos. 18-3037/19-3011, Second Mot. to

Consolidate (Oct. 2, 2019). We denied the motion. Nos. 18-3037/19-3011, Order Den. Mot. to

Consolidate (Oct. 7, 2019).

II. ANALYSIS

A. Petition in Case No. 18-3037

In her first petition, Dable asks us to review the BIA’s 2017 decision not to reopen her

removal proceedings, Pet. I at 7–9, but it is clear that we lack the jurisdiction to review the decision.

BIA regulations permit the sua sponte reopening of removal proceedings. Mata v. Lynch, 135 S.

Ct. 2150, 2153 (2015) (citing 8 C.F.R. § 1003.2(a) (2015)). But the BIA exercises this authority

only in “exceptional situations” because “[t]his power ‘is not meant to be used as a general cure

for filing defects or to otherwise circumvent the regulations, where enforcing them might result in

hardship.’” Pereyra v. Barr, 784 F. App’x 942, 944 (6th Cir. 2019) (quoting In re J-J-, 21 I & N

6 Nos. 18-3037, 19-3011, Dable v. Barr

Dec. 976, 984 (BIA 1997)). It is well settled that the BIA’s decision to reopen removal proceedings

sua sponte “‘is committed to the unfettered discretion of the BIA’ and therefore is not subject to

judicial review.” Rais, 768 F.3d at 460 (quoting Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir.

2008)). In short, we are precluded from reviewing the BIA’s decision not to exercise its

discretionary sua sponte authority.

Dable argues that we have jurisdiction to review the BIA’s decision. First, she contends

that the Supreme Court in Mata established our jurisdiction to review BIA decisions declining to

exercise its discretionary sua sponte authority. Pet. I at 1–2. But the Court in Mata held that

federal courts have jurisdiction to review denials of motions to reopen that seek equitable tolling

of the statutory filing deadlines because those motions are still statutory motions to reopen. See

Mata, 135 S. Ct. at 2154–55 (explaining that the Fifth Circuit had characterized the motions as

ones relying on the BIA’s discretionary sua sponte authority). The Court did not address whether

courts have jurisdiction to review BIA decisions declining to exercise discretion to reopen removal

proceedings sua sponte except to explain that the BIA’s decision not to exercise that authority was

an “extra ruling” that did not cause the court of appeals to lose jurisdiction over the BIA’s decision

denying the petitioner’s statutory motion to reopen. Id. at 2155. Mata has no bearing here.5

Second, Dable argues that we have limited jurisdiction to review the BIA’s sua sponte

decisions when it “has relied upon an incorrect legal premise.” Pet. I at 2 (quoting Lisboa v.

Holder, 570 F. App’x 468, 472 (6th Cir. 2014)). But we have yet to decide this question, and we

5 For this reason, Dable’s argument that we should reexamine our precedent, Barry, 524 F.3d at 723, and Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004), holding that we lack the jurisdiction to review BIA decisions declining to exercise its discretion to reopen proceedings sua sponte because of Mata is unavailing. See No. 18-3037, Reply Br. at 2–3. She also argues that our decision in Gor v. Holder, 607 F.3d 180 (6th Cir. 2010), undermines this precedent, No. 18-3037, Reply Br. at 2, but we were clear in Gor that “[t]hose decisions remain the law of this circuit,” 607 F.3d at 188; see also Rais, 768 F.3d at 462.

7 Nos. 18-3037, 19-3011, Dable v. Barr

decline to do so here because, like the plaintiff in Lisboa, Dable fails to identify an incorrect legal

premise that the BIA relied upon in its decision. See Lisboa, 570 F. App’x at 473. Dable points

to an alleged policy or historical practice of reopening removal proceedings to adjust status relying

on family-based visas, Pet. I at 12–14, but this is not a legal premise, see Pllumi v. Att’y Gen. of

U.S., 642 F.3d 155, 163 (3d Cir. 2011) (identifying 8 C.F.R. § 1208.13(b)(1)(iii)(B)); Mahmood

v. Holder, 570 F.3d 466, 471 (2d Cir. 2009) (identifying Supreme Court precedent and an

amendment to 8 C.F.R. § 1240.26(e)(1)). There is no statute or regulation providing when the BIA

must exercise its discretionary sua sponte authority to reopen removal proceedings. See Uritsky v.

Holder, 327 F. App’x 605, 610 (6th Cir. 2009) (quoting Harchenko, 379 F.3d at 411).

B. Petition in Case No. 19-3011

Dable argues that her second motion to reopen is a statutory motion to reopen because she

could not file it until Pereira was decided, thereby equitably tolling the statutory filing deadline.

Pet. II at 2–5. She also argues that Pereira demonstrates that the two-step process consisting of a

notice to appear lacking the date and time of removal proceedings and a notice of hearing later

supplying the date and time does not confer jurisdiction to the immigration court, nor does it trigger

the stop-time rule for cancellation of removal. Id. at 17–42. However, Dable failed

administratively to exhaust her equitable-tolling argument, requiring us to treat the BIA’s 2018

decision as one not to exercise its discretionary sua sponte authority to reopen removal

proceedings.6

6 We make two observations regarding Dable’s Pereira arguments, however. First, the amicus urges us to conclude that the two-step process is insufficient to confer jurisdiction to immigration courts under Pereira and that we must reach this conclusion—despite far-reaching practical consequences—and leave the rest to Congress. Amicus Br. at 2–10. Given the collective experience of the amicus retired immigration judges, their position warrants serious consideration.

8 Nos. 18-3037, 19-3011, Dable v. Barr

A noncitizen may “‘file one motion’ with the IJ or Board to ‘reopen his or her removal

proceedings’” under 8 U.S.C. § 1229a(c)(7)(A). Mata, 135 S. Ct. at 2153 (quoting Dada v.

Mukasey, 554 U.S. 1, 4–5 (2008)). Federal courts of appeals have jurisdiction to review BIA

decisions denying statutory motions to reopen. Id. (citing Kucana v. Holder, 558 U.S. 233, 242,

253 (2010)). A statutory motion to reopen must generally “be filed within 90 days of the date of

entry of a final administrative order of removal,” § 1229a(c)(7)(C)(i), although this requirement is

subject to exceptions, Rais, 768 F.3d at 459 (citing 8 C.F.R. § 1003.2(c)(3)(i)-(iv)), and equitable

tolling, Gor, 607 F.3d at 184 (citing Barry, 524 F.3d at 724).

However, federal courts of appeals lack jurisdiction to consider arguments that were not

exhausted administratively before the BIA. Yinggui Lin v. Holder, 565 F.3d 971, 978 (6th Cir.

2009) (citing 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 559–60 (6th Cir. 2004)).

“[T]his Court has explained that the issue must be reasonably developed in the petitioner’s brief

Second, there are new approaches gaining traction among the circuits. In Ortiz-Santiago, the Seventh Circuit concluded that Pereira’s plain-text interpretation of “a ‘notice to appear’” in 8 U.S.C. § 1229(a)(1) prohibits the two- step process and that this interpretation applies to “a Notice to Appear” in the regulations that purport to define immigration courts’ jurisdiction, 8 C.F.R. § 1003.13 and 8 C.F.R. § 1003.14. 924 F.3d at 959–61. But the court concluded that this did not impact the immigration court’s subject-matter jurisdiction because the regulation is a “claim-processing rule[ ]” and so any objections regarding the rule are forfeitable. Id. at 692–63; see also Pierre-Paul v. Barr, 930 F.3d 684, 691–93 (5th Cir. 2019) (finding the two-step process sufficient to confer jurisdiction, but concluding in the alternative that 8 C.F.R. § 1003.13 is a claims-processing rule). In reaching its conclusion, the Seventh Circuit rejected as “absurd” the government’s argument that even if Pereira compelled such a result for the statutory text, it did not do so for the regulations. Ortiz-Santiago, 924 F.3d at 961–62. We, however, relied on the government’s argument in part in Santos-Santos. 917 F.3d at 490 n.4. The Ninth Circuit also recently reversed itself, holding that Pereira compels the conclusion that the two-step process does not trigger the stop-time rule. Lopez, 925 F.3d at 399–400. We rejected the reasoning of Lopez in Garcia-Romo v. Barr, 940 F.3d 192, 203–04 (6th Cir. 2019), but only after scant textual analysis, see id. at 200–01, and while bound by our prior decisions interpreting Pereira in the jurisdictional context, Hernandez-Perez and Santos-Santos, which were decided without considering the Ortiz- Santiago approach. Were we writing on a blank slate, we would be inclined to follow the Seventh Circuit’s approach and at least conclude that § 1003.14 is a claims-processing rule. We would then be amenable as well to reexamining how the two- step process implicates Pereira. In any event, given the conflicts among the circuits, the time may be ripe for Supreme Court review.

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to the BIA,” otherwise the issue is forfeited. Khalili v. Holder, 557 F.3d 429, 433 (6th Cir. 2009)

(citing Hasan v. Ashcroft, 397 F.3d 417, 419–20 (6th Cir. 2005)).

Dable did not reasonably develop her equitable-tolling argument in her brief to the BIA.

She did not mention the doctrine of equitable tolling or apply any relevant case law, such as the

five-factor test we use to evaluate whether equitable tolling applies, Barry, 524 F.3d at 724

(quoting Ajazi v. Gonzales, 216 F. App’x 515, 518 (6th Cir. 2007)). She stated that her “motion

is not time or numerical [sic] barred because, under the Supreme Court holding [in Pereira],

removal proceedings have not yet lawfully commenced and as such the order is nullified ab initio.”

A.R. at 18. This argument focuses not on equitable tolling, but on a lack of valid proceedings from

the beginning due to nonexistent jurisdiction. See id. at 19–23. Dable did not exhaust her

equitable-tolling argument, and so we cannot consider it. Therefore, the only option is to treat the

BIA’s 2018 decision as one denying her motion to reopen her removal proceedings sua sponte,

which we lack jurisdiction to review.

Dable raises two counterarguments, but neither is successful. She argues that the BIA erred

by failing to address the five-factor test for equitable tolling, No. 19-3011, Reply Br. at 7, but it is

her burden to “properly present[ her claims] to the BIA” so that they can be “considered on their

merits,” Hasan, 397 F.3d at 419 (quoting Ramani, 378 F.3d at 560). Dable also argues that the

government forfeited its argument that she did not exhaust administratively her equitable-tolling

argument because it failed to object to her assertion that her motion was not time-barred or

numerically-barred. No. 19-3011, Reply Br. at 6. Given Dable’s failure to present properly her

equitable-tolling argument to the BIA, we cannot say that the government forfeited its objection.

In any case, subject-matter jurisdiction “can never be forfeited or waived.” Hernandez-Perez,

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911 F.3d at 310-11 (quoting Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs, 558 U.S. 67, 81

(2009)); see also Kuppusamy v. Holder, 437 F. App’x 452, 455 (6th Cir. 2011) (concluding that

failure administratively to exhaust results in a lack of subject-matter jurisdiction). Thus, there is

no bar to determining that we lack jurisdiction to consider Dable’s equitable-tolling argument.

III. CONCLUSION

For these reasons, we DISMISS Dable’s petitions for judicial review of the BIA’s

decisions.