One Less Brick in the Wall, Mata v. Lynch
We met Mr. Mata in October of 2012. Probably the most outstanding thing about his situation was how typical it was. Like so many of our clients, he is a long-time non-LPR with an assault conviction. Never mind that his wife later swore under oath that he never struck her or that he is a single parent to three U.S. citizen kids after the same woman was imprisoned for drug trafficking. Such people often become fodder for negligent attorneys who take their money and then when a brief or a notice of appeal does not get filed, no big deal. The client who trusted them won’t be around long enough to sue. We took his case pro bono when we discovered his ordeal.
In Mata’s case, his prior attorney had failed to file an appellate brief—typical negligence (Justice Posner recently called the immigration bar “weak,” and he was right.). We intervened. By our count, we had filed a motion to reopen with the Board 105 days from the Board’s denial of the appeal. The Board denied our motion.
On judicial review, the Fifth Circuit cited Ramos-Bonilla v. Mukasey, 543 F. 3d 216 (5th Cir. 2008) for the proposition that it cannot review the BIA’s denial of a request for equitable tolling because it’s all just “sua sponte” (since it is an untimely motion), and the courts typically refuse jurisdiction to review the Board’s use of its sua sponte power. (Side note: in preparing our petition for certiorari we counted 16 times in the past 7 years the Fifth Circuit has denied petitions for review with the same logic; in my imagination the court has rigged some sort of Ferris Bueller-type automaton to write these opinions while the court is out joyriding in a borrowed Ferrari.).
Our petition for cert. only asked one question: do the courts have jurisdiction over equitable tolling claims like ours? On June 15, the Court, in an 8-1 decision voiced by Justice Kagen, said the courts do indeed have jurisdiction over such claims. In vacating the Fifth Circuit’s decision, the Court reiterated its holding in Kucana that the courts have jurisdiction to review motions to reopen, and added “[n]othing changes when the Board denied a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.” Slip. op. at 4. At first glance, these words appear to expand jurisdiction only where an equitable tolling claim is at issue. But the Court held that the appeals courts have jurisdiction over all motions to reopen, regardless of whether they are seeking equitable tolling. Slip op. at 5 (“Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”).
What does this mean? While the Court pussyfoots around the big question, i.e. whether the courts can review the BIA’s sua sponte decisions for abuse of discretion, the fact remains that every time the Board invokes its sua sponte authority, it necessarily does so in a decision where it has already found that a motion is either untimely or does not meet the criteria for a motion to reopen or reconsider. See INA § 240(c)(6-7)). And because the Court has definitively separated the Board’s rejection of the motion for not meeting statutory criteria from its rejection for not meeting the sua sponte standard, this must mean that every decision of the Board is subject to at least some degree of abuse of discretion review. Rather than denying jurisdiction for untimeliness, the Fifth Circuit now has to examine whether the Board abused its discretion in rejecting the motion because of its untimeliness. What goes into this consideration? Mere review of the timeliness of the motion (hopefully taking into account equitable tolling and not just based on ineffective assistance of counsel)? Or might there also be room to argue that the Board abuses its discretion in denying a motion, regardless of timeliness, when the error or deprivation sought to be redressed is particularly compelling? When, for example, a client was ordered removed based on incorrect law? The court must now establish some rule for overturning or not overturning the BIA in such situations, and an absolute prohibition would have the same result as a jurisdictional bar, potentially conflicting with Reyes Mata.
And what of Heckler v. Chaney, 470 US 821 (1985), the case so often relied upon as creating a blanket jurisdictional bar to review of the BIA’s sua sponte decisions? Reyes Mata does not so much as cite it. And the Court’s antipathy to judicial creation of artificial jurisdictional barriers to reviewing motions to reopen would seem to conflict with its application in immigration proceedings.
Mata v. Lynch contains at least one more gem. Justice Kagen’s biggest beef at oral argument (one all the justices seemed to agree with) and the subject of her final thought, slip op. at 8, was that the Fifth Circuit was “wrap[ping]” its “merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other.” Slip op. at 8. In other words, the Court is hyper-aware of the appeals courts’ (and presumably of the agencies’) attempts to construe their jurisdiction in such a way that they can avoid rendering a merits decision which would otherwise appear extremely unjust to a reviewing court. At Gonzalez Olivieri, we represent a small army of unjustly deported clients (removed pre-Lopez v. Gonzalez, pre-Carachuri, pre-Leocal v. Ashcroft, pre-St. Cyr, pre-Judulang, you name it) who would very much like to present their merits claims to the judicial courts and are ready to go all World War Z on the sua sponte jurisdictional wall. For those of us who labor in the Fifth Circuit, getting equitable tolling (the next big question in Mata) will be a start. But that wall, built by Heckler, is just another review-shielding jurisdictional barrier as it relates to immigration proceedings, and we, as well, I think, as some of the Supreme Court justices, would like to see it come down. Mata v. Lynch may hopefully represent one less brick in that wall.
Written by Raed Gonzalez, AILA Member