7th Circuit interprets "questions of law" for reopening cases, post-Kucana

Seventh Circuit Overrules Singh , Holds that 8 USCA § 1252(a)(2)(B)(ii) Bars Review of Decisions Regarding Motions to Reopen

Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th Cir. July 7, 2008)

In Singh v. Gonzales, 404 F.3d 1024 (7th Cir. 2005), the Seventh Circuit held that the denial by the Board of Immigration Appeals (BIA) of an alien's motion to reopen removal proceedings did not fall within the jurisdiction-stripping provision for discretionary decisions of the Attorney General, INA § 242(a)(2)(B)(ii) [8 USCA § 1252(a)(2)(B)(ii)], because “conspicuously absent” from the statute providing for motions to reopen, INA § 240(c)(6) [8 USCA § 1229a(c)(6)], is any specific language entrusting the decision to the discretion of the Attorney General. Subsequently, in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), the Seventh Circuit held that under 8 USCA § 1252(a)(2)(B)(ii), it lacked jurisdiction to review a BIA decision affirming the denial of an alien's request for a continuance of his removal proceedings because such a motion is a discretionary decision the authority for which is committed to the immigration judge (IJ) not only expressly by regulation (8 CFR § 1003.29), but implicitly as part of the IJ's plenary authority under 8 USCA § 1229a to control the course of removal proceedings. [FN1]

In Kucana v. Mukasey, 2008 WL 2639039 (7th Cir. July 7, 2008), a panel of the Seventh Circuit, in an opinion written by Chief Judge Frank H. Easterbrook, held that 8 USCA § 1252(a)(2)(B)(ii) deprives the court of jurisdiction to review a BIA decision denying the alien's motion to reopen, and that Singh must be overruled to the extent it holds otherwise.

As background, 8 USCA § 1252(a)(2)(B)(i) provides in part as follows:

except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section 1182(h) [regarding waiver of certain grounds of inadmissibility], 1182(i) [regarding waiver of inadmissibility based on fraud or willful misrepresentation of a material fact], 1229b [regarding cancellation of removal], 1229c [regarding voluntary departure], or 1255 [regarding adjustment of status of nonimmigrant to that of person admitted for permanent residence] of this title.

8 USCA § 1252(a)(2)(B)(ii) provides in part as follows: except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter [Subchapter II, Immigration] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [regarding applications for asylum].

8 USCA § 1252(a)(2)(D) provides as follows: Nothing in subparagraph (B) ... which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 USCA § 1252(b)(6) provides: When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.

Chief Judge Easterbrook said:

Recently this circuit addressed the question--on which other courts of appeals are divided--whether § 1252(a)(2)(B)(ii) applies when the agency's discretion is specified by a regulation rather than a statute. After the parties filed their briefs in this case, we held in Ali ... that § 1252(a)(2)(B)(ii) applies to discretionary decisions under regulations that are based on and implement the Immigration and Nationality Act. The discretionary decision in Ali was whether to grant an alien's request for a continuance of a hearing; here the discretionary decision is whether to reopen the proceeding and hold a new hearing. Regulations specify that both decisions are discretionary; both regulations draw their force from provisions in the Act allowing immigration officials to govern their own proceedings. See 8 U.S.C. § 1229a(c)(7) (authority for reopening by Board). It follows that they are equally subject to § 1252(a)(2)(B)(ii).

The panel's view in Singh was that consolidation of proceedings concerning direct and reopening decisions would be pointless, if orders denying reopening never were subject to judicial review. That was true when the panel issued its opinion (April 15, 2005) but is true no longer. On May 11, 2005, the Real ID Act, Pub.L. 109-13 Div. B Tit. I, took effect. Today decisions denying reopening are within our jurisdiction to the extent provided by § 1252(a)(2)(D)... Because discretionary decisions now may be reviewed when they entail “constitutional claims or questions of law”, there's nothing incongruous about the consolidation rule in § 1252(b)(6). Applying § 1252(a)(2)(B)(ii) to orders denying motions to reopen will not make any part of the statute unnecessary.

The Real ID Act not only changed the relation among statutory subsections but also alleviated the principal consideration that had led the judiciary to confine clauses such as § 1252(a)(2)(B)(ii) to the least scope they had to have. Judges were concerned that an elimination of all review would permit the agency to violate statutes and the Constitution at will. The enactment of § 1252(a)(2)(D) eliminates that reason for giving § 1252(a)(2)(B) a narrow reading--and, as the other arguments advanced in Singh also have been overtaken by events, we conclude that Singh must be overruled to the extent it holds § 1252(a)(2)(B)(ii) inapplicable to discretionary reopening decisions.

Chief Judge Easterbrook's opinion was circulated under Circuit Rule 40(e) to all 15 active judges. A majority of them did not favor a hearing en banc. However, five judges (Joel M. Flaum, Kenneth F. Ripple, Ilana Diamond Rovner, Diane P. Wood, and Ann Claire Williams) voted in favor of a hearing en banc.

Judge Ripple, concurring, dubitante: [FN2]

Judge Ripple agreed with the principal opinion that the disposition of the present case appears to be controlled by the court's holding in Ali, which he said “operates as a de facto overruling of our decision in Singh...” He added:

Although I believe that we are bound by the holding in Ali and that the principal opinion represents a logical extension of that holding, I write separately because I continue to be concerned by the breadth of Ali's holding. In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision, discretionary in nature, which “derives from 8 U.S.C. § 1229a,” which, in turn, “confers upon immigration judges the plenary authority to conduct removal proceedings.” ... We further observed that “[t]he regulation regarding continuances simply implements the immigration judge's statutory authority to control the course of removal proceedings.” .... Here, however, the rationale of Ali is being applied beyond the realm of procedural rulings; it is being used to deny aliens review of substantive decisions of the Board of Immigration Appeals that are based on a mistake or misunderstanding of the factual basis of the claim--decisions that the Supreme Court has analogized to motions under Federal Rule of Civil Procedure 60(b) [regarding grounds for relief from a final judgment, order, or proceeding]. ... Furthermore, although the present case involves only a motion to reopen, Ali's rationale would appear to apply equally to motions to reconsider--the basis for which must be a mistake or misapprehension of law. ... In short, the rationale of Ali, taken to its logical conclusion, deprives this court of jurisdiction to review the BIA's mistakes of fact and law made during the course of deciding whether an alien should be removed from this country.

Although the result today appears to be dictated by circuit precedent, I respectfully suggest that, had Congress intended to deprive this court of jurisdiction of specific substantive decisions, it would have done so explicitly, as it did in 8 U.S.C. § 1252(a)(2)(B)(i). As Ali spreads its dominion to substantive fields, it is turning this court into a virtual council of revision with respect to settled federal law. Before taking these steps, we should revisit the holding in Ali and determine whether we should chart a course that more closely adheres to the statutory language chosen and enacted by Congress.

Judge Richard D. Cudahy, dissenting:

In Ali ... we adopted a view, which (as that opinion acknowledged) is in a minority one among the circuits, with respect to our jurisdiction over appeals from denials of continuances. Six of our sister courts had concluded that 8 U.S.C. § 1252(a)(2)(B)(ii) did not preclude federal appellate courts from reviewing orders denying such motions. Only the Eighth and Tenth Circuits had held that § 1252(a)(2)(B)(ii) precludes federal courts of appeals from reviewing an immigration judge's denial of a continuance. ... Yet even these courts continue to exercise jurisdiction over motions to reopen. ... The principal opinion would cause us to become a minority within the minority, giving the executive branch the authority to insulate its decisions from judicial review where there is no clear indication in the statute that Congress intended to strip us of our jurisdiction. Our isolated posture in this respect may give us pause here.

Ultimately, the principal opinion rests its rejection of Singh upon the focus of the Real ID Act upon judicial reviewability of “constitutional claims or questions of law.” According to the principal opinion this eliminates the need for a narrow reading of jurisdiction-stripping provisions and meets the judiciary's principal concern in this area. I think this exercise in judicial psychoanalysis must yield to broader principles favoring judicial review of administrative decisions.

As the concurrence points out, the rationale of the principal opinion would bar our review of motions to reconsider, which are based on errors of law and fact. Absent “ ‘specific language or specific legislative history that is a reliable indicator of congressional intent,’ or a specific congressional intent to preclude judicial review that is ‘fairly discernible in the detail of the legislative scheme,’ ” Traynor, 485 U.S. at 542, 108 S.Ct. 1372, 99 L.Ed.2d 618 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 673, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)), I am reluctant to broaden the immunity from review of an administrative process not necessarily renowned for its reliability.

Judge Ripple, with whom Judges Rovner, Wood, and Williams join, dissenting from the denial of a rehearing en banc:

This case presents an important issue with respect to the scope of this court's holding in Ali ... In Ali, we addressed our authority to hear appeals from the denial of a motion to continue--an interim decision that is discretionary in nature. ... Here, however, the rationale of Ali is being applied beyond the realm of such a procedural ruling; it is being used to deny aliens review of a motion to reopen, a decision of the Board of Immigration Appeals that is based on a mistake or misunderstanding of the factual basis of the claim. This expansion into the realm of outcome determinative decisions takes us a long way from the statutory language chosen and enacted by Congress. See 8 U.S.C. § 1252(a)(2)(B)(i).

Applying Ali to deny aliens review of the decision whether to reopen crystalizes the importance of revisiting the breadth of that holding: The Supreme Court has analogized motions to reopen to motions under the Federal Rule of Civil Procedure 60(b) .... Indeed, since the panel's consideration of this case, the Supreme Court has characterized motions to reopen as an “important safeguard” designed to “ensure a proper and lawful disposition.” Dada v. Mukasey, No. 06-1181, --- S.Ct. ----, 2008 WL 2404066 at *15, 16 (June 16, 2008). [FN3] This new holding of the Supreme Court should make us pause, take a deep breath and consider anew whether we really want to take the Circuit down a path so contrary to the manifest intent of Congress and to the Supreme Court's understanding of that intent. If we take such a course, our decision will no doubt warrant close scrutiny by the Supreme Court.

Michael R. Lang, Chicago, Illinois, for the petitioner. Kathryn Deangelis, Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for the respondent.

[FN1]. Ali is discussed in 84 Interpreter Releases 2265 (Oct. 1, 2007).

[FN2]. Black's Law Dictionary (8th ed. 2004) defines “dubitante” as indicating that the judge doubts a legal point but is unwilling to state that it is wrong.

[FN3]. Dada is discussed in 85 Interpreter Releases 1789 (June 23, 2008) and 85 Interpreter Releases 1878 (July 7, 2008).