Vela-Estrada v. Lynch, No. 14-619 (2d Cir. 2016)
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Petitioner, a native and citizen of Guatemala, petitioned for review of the BIA's decision 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 IJ. The court concluded that the decision not to certify an untimely appeal is committed to agency discretion by law. Because the decision not to certify an untimely appeal is committed to BIA discretion, it is not subject to judicial review. The court remanded to the BIA for it to address the motion to reopen removal proceedings because the agency had not addressed the motion.
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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 Petitioner s 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 O ce of Jose C. Campos, Esq., Bethlehem, Pennsylvania, for Petitioner. PATRICIA E. BRUCKNER, Trial Attorney, John W. Blakeley, Assistant Director, O ce 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 BIA ) 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 ( IJ ). 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 Estrada s 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 le a notice of appeal, but instead led a motion with the BIA requesting that it accept his late led appeal, referencing an attached exhibit, or alternatively that it certify the appeal pursuant to 8 C.F.R. § 1003.1(c), due to the exceptional circumstances directly resulting from [Vela Estrada s] ine ective assistance of counsel. R. at 23. The attached exhibit was a motion to reopen his removal proceedings. On January 31, 2014, the BIA found Vela Estrada s appeal untimely and declined to accept the case on certi cation. The BIA did not address Vela Estrada s 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 certi cation: [T]he [BIA] may in any case arising under paragraph (b) of this section [defining the BIA s 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 BIA s decision not to certify an untimely appeal. In prior unpublished decisions, we have either concluded that we lack jurisdiction to consider the BIA s certi cation decision, e.g., Maynard v. BIA, 293 F. App x 821, 822 23 (2d Cir. 2008); Veizaj v. Mukasey, 291 F. App x 405, 405 06 (2d Cir. 2008); Islam v. Gonzales, 238 F. App x 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. App x 663, 664 65 (2d Cir. 2009); Zhong Guang Sun v. Mukasey, 270 F. App x 83, 84 (2d Cir. 2008). In light of our recent decision holding that avoiding jurisdictional questions by assuming hypothetical jurisdiction is prohibited in all but the narrowest of circumstances, 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 agency s discretionary certi cation decision. Under the Administrative Procedure Act, judicial review is expressly foreclosed where (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 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 committed to agency discretion where the governing law is drawn so that a court would have no meaningful standard against which to judge the agency s exercise of discretion. 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 plainti s claim where there was no statute or regulation that would limit agency discretion). The plain language of the regulation here commits the certi cation decision to BIA discretion. 8 C.F.R. § 1003.1(c) ( The [BIA] in its discretion may 5 review any such case by certification . . . . (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 exceptional circumstances. In re Liadov, 23 I. & N. Dec. 990, 993 (B.I.A. 2006) (holding that short delays by overnight delivery services are not exceptional circumstances); see also Zhong Guang Sun v. DOJ, 421 F.3d 105, 108 (2d Cir. 2005) ( [W]hile under normal circumstances the BIA cannot hear late led appeals, it may hear such appeals in unique or extraordinary circumstances. ). The BIA, however, has not elaborated on what exceptional circumstances would merit certi cation. In light of the lack of meaningful guidance on how the BIA s discretion should be applied, two circuits have held that the BIA s certi cation decision is not subject to judicial review. See Liadov v. Mukasey, 518 F.3d 1003, 1010 (8th Cir. 2008) (certi cation decision committed to agency discretion by law due to (1) the total absence of statutory standards, (2) the absence of meaningful guidance for applying the exceptional circumstances standard in the regulation . . . and (3) the absence of a settled course of adjudication that could establish a meaningful standard (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) (certi cation decision beyond review because of lack of standards to judge the BIA s exercise of discretion ). 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 BIA s 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 BIA s certi cation 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 e ect 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 express[ed] no opinion on whether federal courts may review the [BIA s] decision not to reopen removal proceedings sua sponte, a decision made discretionary by regulation, and recognizing many appellate courts have held that sua sponte reopening is committed to agency discretion by law (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 BIA s discretionary sua sponte reopening decision). After Kucana, we have reiterated that the BIA s 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 a ect our conclusion here that the certi cation decision under 8 C.F.R. § 1003.1(c) is committed to agency discretion and unreviewable. Accordingly, Vela Estrada s petition for review of the certi cation decision is dismissed. As for Vela Estrada s motion to reopen, which was attached as an exhibit, it is unclear from the BIA s decision whether it considered that motion. Accordingly, we remand for the BIA to address the motion to reopen in the rst 8 instance. Cf. Zhao v. DOJ, 265 F.3d 83, 97 (2d Cir. 2001) (explaining that [f]ailure to explain a decision adequately provides a ground for reversal, and that when faced with a motion to reopen, the Board has an obligation to consider the record as a whole ). In doing so, it should consider whether the motion was appropriately led with the BIA, or whether Vela Estrada should return to the IJ in the rst 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
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