14‐619‐ag Vela‐Estrada v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2015
(Argued: March 16, 2016 Decided: March 21, 2016)
Docket No. 14‐619‐ag
HENRY VELA‐ESTRADA, AKA Henry Vela,
Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before: STRAUB, CHIN, and CARNEY, Circuit Judges. ______
Petition for review of a decision of the Board of Immigration
Appeals dismissing as untimely Petitionerʹs appeal from his order of removal.
PETITION GRANTED IN PART AND DISMISSED IN PART. ______ KEVIN S. SANTOS, SR., Santos Law Group, pc, Allentown, Pennsylvania, and Jose C. Campos, Law Office of Jose C. Campos, Esq., Bethlehem, Pennsylvania, for Petitioner.
PATRICIA E. BRUCKNER, Trial Attorney, John W. Blakeley, Assistant Director, Office of Immigration Litigation, Joyce R. Branda, Acting Assistant Attorney General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PER CURIAM:
Petitioner Henry Vela‐Estrada seeks review of a January 31, 2014
decision of the Board of Immigration Appeals (the ʺBIAʺ) declining to certify,
pursuant to 8 C.F.R. § 1003.1(c), his untimely appeal of the May 14, 2013 order of
removal of the Immigration Judge (ʺIJʺ). For the reasons set forth below, we
conclude that the decision not to certify an untimely appeal is committed to BIA
discretion and, accordingly, is not subject to judicial review. Because the BIA did
not address Vela‐Estradaʹs motion to reopen his removal proceedings, we
remand to the BIA for it to address the motion to reopen.
‐ 2 ‐ BACKGROUND
Vela‐Estrada, a native and citizen of Guatemala, was admitted to the
United States in 1989 as a lawful permanent resident. In 2005, he was convicted
in Pennsylvania of delivery of a controlled substance. In 2013, the Department of
Homeland Security instituted removal proceedings, charging Vela‐Estrada as
removable based on the narcotics conviction. The IJ found him removable as
charged, and ordered him removed to Guatemala. Vela‐Estrada was removed to
Guatemala on June 20, 2013.
Vela‐Estrada did not timely file a notice of appeal, but instead filed a
motion with the BIA requesting that it accept his late‐filed appeal, referencing an
attached exhibit, or alternatively that it certify the appeal pursuant to 8 C.F.R.
§ 1003.1(c), ʺdue to the exceptional circumstances directly resulting from [Vela‐
Estradaʹs] ineffective assistance of counsel.ʺ R. at 23. The attached exhibit was a
motion to reopen his removal proceedings. On January 31, 2014, the BIA found
Vela‐Estradaʹs appeal untimely and declined to accept the case on certification.
The BIA did not address Vela‐Estradaʹs motion to reopen in its January 31, 2014
decision. Vela‐Estrada timely petitioned this Court for review.
‐ 3 ‐ DISCUSSION
Section 1003.1(c) of Title 8 of the Code of Federal Regulations grants
the BIA authority to accept an untimely appeal by certification:
[T]he [BIA] may in any case arising under paragraph (b) of this section [defining the BIAʹs appellate jurisdiction] certify such case to the [BIA]. The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case . . . .
We have not previously addressed in a precedential decision
whether we have jurisdiction to consider the BIAʹs decision not to certify an
untimely appeal. In prior unpublished decisions, we have either concluded that
we lack jurisdiction to consider the BIAʹs certification decision, e.g., Maynard v.
BIA, 293 F. Appʹx 821, 822‐23 (2d Cir. 2008); Veizaj v. Mukasey, 291 F. Appʹx 405,
405‐06 (2d Cir. 2008); Islam v. Gonzales, 238 F. Appʹx 676, 678 (2d Cir. 2007), or
assumed hypothetical jurisdiction to review claims that were plainly without
merit, e.g., Gong Ping Chen v. Holder, 341 F. Appʹx 663, 664‐65 (2d Cir. 2009); Zhong
Guang Sun v. Mukasey, 270 F. Appʹx 83, 84 (2d Cir. 2008). In light of our recent
decision holding that avoiding jurisdictional questions by assuming hypothetical
jurisdiction is ʺprohibited in all but the narrowest of circumstances,ʺ Ortiz‐Franco
‐ 4 ‐ v. Holder, 782 F.3d 81, 86 (2d Cir. 2015), we consider the jurisdictional question
here and conclude, for the reasons discussed below, that we lack jurisdiction to
review the agencyʹs discretionary certification decision.
Under the Administrative Procedure Act, judicial review is expressly
foreclosed where ʺ(1) statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.ʺ 5 U.S.C. § 701(a). The BIA derives its
discretionary authority to certify an untimely appeal from regulation, as opposed
to statute. Accordingly, our jurisdictional authority hinges on the applicability of
the second exception to judicial review: whether the action was committed to
agency discretion by law.
An administrative action is ʺcommitted to agency discretionʺ where
the governing law is ʺdrawn so that a court would have no meaningful standard
against which to judge the agencyʹs exercise of discretion.ʺ Heckler v. Chaney, 470
U.S. 821, 830 (1985); accord Lunney v. United States, 319 F.3d 550, 558‐60 (2d Cir.
2003) (court lacked jurisdiction to consider plaintiffʹs claim where there was no
statute or regulation that would limit agency discretion).
The plain language of the regulation here commits the certification
decision to BIA discretion. 8 C.F.R. § 1003.1(c) (ʺThe [BIA] in its discretion may
‐ 5 ‐ review any such case by certification . . . . ʺ (emphasis added)). Neither 8 C.F.R.
§ 1003.1(c) nor any other regulation or statute provides guidance on how this
discretion should be exercised. The BIA has merely stated that it will exercise
this power only in ʺexceptional circumstances.ʺ In re Liadov, 23 I. & N. Dec. 990,
993 (B.I.A. 2006) (holding that ʺshort delays by overnight delivery servicesʺ are
not exceptional circumstances); see also Zhong Guang Sun v. DOJ, 421 F.3d 105, 108
(2d Cir. 2005) (ʺ[W]hile under normal circumstances the BIA cannot hear late‐
filed appeals, it may hear such appeals in unique or extraordinary
circumstances.ʺ). The BIA, however, has not elaborated on what ʺexceptional
circumstancesʺ would merit certification.
In light of the lack of meaningful guidance on how the BIAʹs
discretion should be applied, two circuits have held that the BIAʹs certification
decision is not subject to judicial review. See Liadov v. Mukasey, 518 F.3d 1003,
1010 (8th Cir. 2008) (certification decision committed to agency discretion by law
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14‐619‐ag Vela‐Estrada v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2015
(Argued: March 16, 2016 Decided: March 21, 2016)
Docket No. 14‐619‐ag
HENRY VELA‐ESTRADA, AKA Henry Vela,
Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before: STRAUB, CHIN, and CARNEY, Circuit Judges. ______
Petition for review of a decision of the Board of Immigration
Appeals dismissing as untimely Petitionerʹs appeal from his order of removal.
PETITION GRANTED IN PART AND DISMISSED IN PART. ______ KEVIN S. SANTOS, SR., Santos Law Group, pc, Allentown, Pennsylvania, and Jose C. Campos, Law Office of Jose C. Campos, Esq., Bethlehem, Pennsylvania, for Petitioner.
PATRICIA E. BRUCKNER, Trial Attorney, John W. Blakeley, Assistant Director, Office of Immigration Litigation, Joyce R. Branda, Acting Assistant Attorney General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
PER CURIAM:
Petitioner Henry Vela‐Estrada seeks review of a January 31, 2014
decision of the Board of Immigration Appeals (the ʺBIAʺ) declining to certify,
pursuant to 8 C.F.R. § 1003.1(c), his untimely appeal of the May 14, 2013 order of
removal of the Immigration Judge (ʺIJʺ). For the reasons set forth below, we
conclude that the decision not to certify an untimely appeal is committed to BIA
discretion and, accordingly, is not subject to judicial review. Because the BIA did
not address Vela‐Estradaʹs motion to reopen his removal proceedings, we
remand to the BIA for it to address the motion to reopen.
‐ 2 ‐ BACKGROUND
Vela‐Estrada, a native and citizen of Guatemala, was admitted to the
United States in 1989 as a lawful permanent resident. In 2005, he was convicted
in Pennsylvania of delivery of a controlled substance. In 2013, the Department of
Homeland Security instituted removal proceedings, charging Vela‐Estrada as
removable based on the narcotics conviction. The IJ found him removable as
charged, and ordered him removed to Guatemala. Vela‐Estrada was removed to
Guatemala on June 20, 2013.
Vela‐Estrada did not timely file a notice of appeal, but instead filed a
motion with the BIA requesting that it accept his late‐filed appeal, referencing an
attached exhibit, or alternatively that it certify the appeal pursuant to 8 C.F.R.
§ 1003.1(c), ʺdue to the exceptional circumstances directly resulting from [Vela‐
Estradaʹs] ineffective assistance of counsel.ʺ R. at 23. The attached exhibit was a
motion to reopen his removal proceedings. On January 31, 2014, the BIA found
Vela‐Estradaʹs appeal untimely and declined to accept the case on certification.
The BIA did not address Vela‐Estradaʹs motion to reopen in its January 31, 2014
decision. Vela‐Estrada timely petitioned this Court for review.
‐ 3 ‐ DISCUSSION
Section 1003.1(c) of Title 8 of the Code of Federal Regulations grants
the BIA authority to accept an untimely appeal by certification:
[T]he [BIA] may in any case arising under paragraph (b) of this section [defining the BIAʹs appellate jurisdiction] certify such case to the [BIA]. The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case . . . .
We have not previously addressed in a precedential decision
whether we have jurisdiction to consider the BIAʹs decision not to certify an
untimely appeal. In prior unpublished decisions, we have either concluded that
we lack jurisdiction to consider the BIAʹs certification decision, e.g., Maynard v.
BIA, 293 F. Appʹx 821, 822‐23 (2d Cir. 2008); Veizaj v. Mukasey, 291 F. Appʹx 405,
405‐06 (2d Cir. 2008); Islam v. Gonzales, 238 F. Appʹx 676, 678 (2d Cir. 2007), or
assumed hypothetical jurisdiction to review claims that were plainly without
merit, e.g., Gong Ping Chen v. Holder, 341 F. Appʹx 663, 664‐65 (2d Cir. 2009); Zhong
Guang Sun v. Mukasey, 270 F. Appʹx 83, 84 (2d Cir. 2008). In light of our recent
decision holding that avoiding jurisdictional questions by assuming hypothetical
jurisdiction is ʺprohibited in all but the narrowest of circumstances,ʺ Ortiz‐Franco
‐ 4 ‐ v. Holder, 782 F.3d 81, 86 (2d Cir. 2015), we consider the jurisdictional question
here and conclude, for the reasons discussed below, that we lack jurisdiction to
review the agencyʹs discretionary certification decision.
Under the Administrative Procedure Act, judicial review is expressly
foreclosed where ʺ(1) statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.ʺ 5 U.S.C. § 701(a). The BIA derives its
discretionary authority to certify an untimely appeal from regulation, as opposed
to statute. Accordingly, our jurisdictional authority hinges on the applicability of
the second exception to judicial review: whether the action was committed to
agency discretion by law.
An administrative action is ʺcommitted to agency discretionʺ where
the governing law is ʺdrawn so that a court would have no meaningful standard
against which to judge the agencyʹs exercise of discretion.ʺ Heckler v. Chaney, 470
U.S. 821, 830 (1985); accord Lunney v. United States, 319 F.3d 550, 558‐60 (2d Cir.
2003) (court lacked jurisdiction to consider plaintiffʹs claim where there was no
statute or regulation that would limit agency discretion).
The plain language of the regulation here commits the certification
decision to BIA discretion. 8 C.F.R. § 1003.1(c) (ʺThe [BIA] in its discretion may
‐ 5 ‐ review any such case by certification . . . . ʺ (emphasis added)). Neither 8 C.F.R.
§ 1003.1(c) nor any other regulation or statute provides guidance on how this
discretion should be exercised. The BIA has merely stated that it will exercise
this power only in ʺexceptional circumstances.ʺ In re Liadov, 23 I. & N. Dec. 990,
993 (B.I.A. 2006) (holding that ʺshort delays by overnight delivery servicesʺ are
not exceptional circumstances); see also Zhong Guang Sun v. DOJ, 421 F.3d 105, 108
(2d Cir. 2005) (ʺ[W]hile under normal circumstances the BIA cannot hear late‐
filed appeals, it may hear such appeals in unique or extraordinary
circumstances.ʺ). The BIA, however, has not elaborated on what ʺexceptional
circumstancesʺ would merit certification.
In light of the lack of meaningful guidance on how the BIAʹs
discretion should be applied, two circuits have held that the BIAʹs certification
decision is not subject to judicial review. See Liadov v. Mukasey, 518 F.3d 1003,
1010 (8th Cir. 2008) (certification decision committed to agency discretion by law
due to ʺ(1) the total absence of statutory standards, (2) the absence of meaningful
guidance for applying the ʹexceptional circumstancesʹ standard in the regulation
. . . and (3) the absence of a ʹsettled course of adjudicationʹ that could establish a
meaningful standardʺ (quoting Tamenut v. Mukasey, 521 F.3d 1000, 1004‐05 (8th
‐ 6 ‐ Cir. 2008)); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (certification
decision ʺbeyond reviewʺ because of lack of ʺstandards to judge the BIAʹs
exercise of discretionʺ). We agree with their analyses and conclude that the
decision not to certify an untimely appeal is committed to agency discretion by
law.1 This decision is consistent with our prior conclusion that we lack
jurisdiction to review the BIAʹs decision not to reopen removal proceedings sua
sponte, another action committed to BIA discretion by regulation. See Ali v.
Gonzales, 448 F.3d 515, 517‐18 (2d Cir. 2006); see also 8 C.F.R. § 1003.2(a).
Vela‐Estrada contends that Kucana v. Holder requires us to review the
BIAʹs certification decision because there the Supreme Court held that judicial
review of agency determinations is not precluded under 8 U.S.C.
§ 1252(a)(2)(B)(ii) where the determination is made discretionary by regulation.
558 U.S. 233, 245‐47 (2010). This argument is unavailing as the Supreme Court
expressly declined to address the effect of § 701(a)(2) of the Administrative
1 We note, however, that review is not entirely foreclosed. Where, in denying certification, the BIA misperceives the law or misunderstands its own jurisdiction, it is appropriate to remand to allow the BIA to consider its authority. See Zhong Guang Sun, 421 F.3d at 111; cf. Mahmood v. Holder, 570 F.3d 466, 471 (2d Cir. 2009). But where, as is the case here, the BIA recognizes its authority to self‐certify, but declines to do so based on a lack of exceptional circumstances, that decision is not subject to judicial review.
‐ 7 ‐ Procedure Act on the reviewability of BIA actions declared discretionary by
regulation. 558 U.S. at 251 n.18 (noting that it ʺexpress[ed] no opinion on
whether federal courts may review the [BIAʹs] decision not to reopen removal
proceedings sua sponte,ʺ a decision made discretionary by regulation, and
recognizing many appellate courts have held that ʺsua sponte reopening is
committed to agency discretion by lawʺ (citing 5 U.S.C. § 701(a)(2)); see also Mata
v. Lynch, 135 S. Ct. 2150, 2155 (2015) (recognizing that Courts of Appeals have
held they generally lack authority to review the BIAʹs discretionary sua sponte
reopening decision).
After Kucana, we have reiterated that the BIAʹs decision not to
reopen proceedings sua sponte is unreviewable. See Duarte‐Ceri v. Holder, 630 F.3d
83, 87 (2d Cir. 2010). Similarly, Kucana does not affect our conclusion here that
the certification decision under 8 C.F.R. § 1003.1(c) is committed to agency
discretion and unreviewable. Accordingly, Vela‐Estradaʹs petition for review of
the certification decision is dismissed.
As for Vela‐Estradaʹs motion to reopen, which was attached as an
exhibit, it is unclear from the BIAʹs decision whether it considered that motion.
Accordingly, we remand for the BIA to address the motion to reopen in the first
‐ 8 ‐ instance. Cf. Zhao v. DOJ, 265 F.3d 83, 97 (2d Cir. 2001) (explaining that ʺ[f]ailure
to explain a decision adequately provides a ground for reversal,ʺ and that ʺwhen
faced with a motion to reopen, the Board has an obligation to consider the record
as a wholeʺ). In doing so, it should consider whether the motion was
appropriately filed with the BIA, or whether Vela‐Estrada should return to the IJ
in the first instance.
CONCLUSION
For the foregoing reasons, the petition for review is GRANTED in
part and DISMISSED in part, and the case is REMANDED to the BIA for
proceedings consistent with this opinion.
‐ 9 ‐