Malukas v. Barr, No. 19-1633 (7th Cir. 2019)Annotate this Case
Malukas, a citizen of Lithuania, entered the U.S. in 1992 on a tourist visa and did not leave when it expired. In 1995 he was convicted of weapons-related felonies. Malukas applied for discretionary relief from removal as the spouse of a U.S. citizen. The Board of Immigration Appeals denied relief. His motion for reconsideration was denied in 2003. Malukas did not seek judicial review but remained in the U.S. His Lithuanian passport had expired; Lithuania would not issue new documents. In 2018 Malukas filed a second motion to reconsider and a motion to reopen, contending that the removal order is invalid because the proceeding began with a “Notice to Appear” that did not include a hearing date and time. The date and time were furnished in a later document. He also contended that he had been rehabilitated and that Lithuania’s failure to accept his return justified discretionary relief. The Board denied this motion. Malukas asked the Board to reopen sua sponte because time-and-number limits do not restrict the Board’s authority to act independently. The Seventh Circuit denied relief, noting that reopening would not be sua sponte but would be a response to the motion, subject to the time-and-number limits and that the Board’s discretionary authority is not subject to judicial review. The rehabilitation and passport arguments are substantive and the Board adequately stated its reasons.