Muhammad Rais v. Eric Holder, Jr. , 768 F.3d 453 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0239p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MUHAMMAD SALMAN RAIS, ┐
Petitioner, │
│
│ No. 13-3639
v. │
>
│
ERIC H. HOLDER, JR., │
Respondent. │
┘
On Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A079 692 636—Detroit.
Decided and Filed: September 16, 2014
Before: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ON BRIEF: Marshal E. Hyman, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC.,
PC, Troy, Michigan, for Petitioner. Kelly J. Walls, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Muhammad Salman Rais, a native and
citizen of Pakistan, is under a final order of removal from the United States. He has twice moved
the Board of Immigration Appeals (BIA) to reopen removal proceedings against him without
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
1
No. 13-3639 Rais v. Holder Page 2
success, requesting that the proceedings be suspended while the United States Citizenship and
Immigration Services (USCIS) adjudicates his application for adjustment of status. The BIA
denied the first motion on the merits and refused to exercise its sua sponte authority to grant the
second, which was untimely and number-barred. Rais now petitions for judicial review of the
second denial. For the reasons that follow, however, we DISMISS the petition for want of
jurisdiction.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
A. Context.
The legal context of this case—caught, as it is, between two branches of the federal
immigration system—potentially clouds apprehension of the questions that it raises.
Accordingly, a brief sketch of that context is in order:
Our immigration system empowers two different entities to adjudicate an
adjustment of status application. Immigration Judges, subject to review by the
[BIA], decide adjustment applications for most noncitizens who are in removal
proceedings. Applications from all other noncitizens are decided by USCIS.
Pursuant to interim regulations adopted by the Executive Office for Immigration
Review in 2006, however, . . . [the] adjustment applications [of a small group of
‘arriving aliens’] are within USCIS’[s] exclusive jurisdiction, even though these
noncitizens are in removal proceedings [before an IJ or the BIA] or have removal
orders [pending] against them.[1]
When USCIS denies an application for adjustment of status in a final
agency action, the noncitizen typically requests relief in federal district court
under the Administrative Procedure Act . . . . But when an Immigration Judge or
the [BIA] denies an application in the process of entering a final removal order . .
. the noncitizen’s only recourse is to ask the [BIA] to reopen or reconsider the
matter, or to file a petition for review of the Board’s order in a [federal] court of
appeals.
Marrakchi v. Napolitano, 494 F. App’x 877, 887 (10th Cir. 2012) (Lucero, J., dissenting)
(citations omitted) (discussing an issue that “[t]he majority d[id] not reach”). Non-citizens are
1
Accord Rais v. Holder, 518 F. App’x 476, 477 (6th Cir. 2013) (per curiam) (“The USCIS has exclusive
jurisdiction over applications for adjustment of status by arriving aliens, except in the case of an alien who is
renewing an application that he filed prior to departure from the United States on advance parole, which may be
presented to an IJ in removal proceedings.” (citing Brito v. Mukasey, 521 F.3d 160, 166-68 (2d Cir. 2008)).
No. 13-3639 Rais v. Holder Page 3
subject to a ten-year bar on re-entry into the United States if they are found to have been
unlawfully present here for more than one year. 8 U.S.C. § 1182(a)(9)(B)(i)(II).
B. History.
Against this backdrop, this case presents two discrete claims that a convoluted factual and
procedural history similarly threatens to obscure. At an earlier stage of the case, this court
briefly recounted much of that history as follows:
Rais was born in Pakistan in 1975. He entered the United States in 2002
to attend school. Shortly after his arrival, Rais married a United States citizen and
applied for adjustment of status to lawful permanent residency. He was convicted
of domestic violence against his wife, also in 2002. Rais was granted advance
parole,[2] allowing him to leave the United States without abandoning his
application for adjustment of status. He was paroled back into this country in
2003. In 2004, [Rais’s] application for adjustment of status was denied because
[he] and his wife were divorcing. [Rais] married another United States citizen in
2005, and again applied for adjustment of status. That application was denied in
2009 because of [the] domestic violence conviction.[3] Simultaneously, Rais was
placed in removal proceedings [in Detroit, Michigan], in which he also attempted
to apply for adjustment of status. The IJ [ordered his removal], determin[ing] that
she lacked jurisdiction to grant Rais adjustment of status under 8 U.S.C. § 1255
and applicable implementing regulations,[4] and the BIA affirmed [on February
2
“As its name implies, ‘advance parole’ is simply parole that has been requested and authorized in advance
based on an expectation that [an] alien will be presenting himself for inspection without a valid visa in the future.”
In re Arrabally, 25 I. & N. Dec. 771, 777 (BIA 2012) (citing 8 C.F.R. § 212.5(f)). Although aliens may request
advance parole from outside of the United States, it is typically sought by aliens who are already within the country
and “want[ ] to leave temporarily but fear[ ] that [they] will either be excluded as . . . inadmissible . . . upon return or
be deemed to have abandoned a pending application for an immigration benefit.” Id. (citing Matter of G-A-C-, 22 I.
& N. Dec. 83, 88 (BIA 1998); 8 C.F.R. §§ 245.2(a)(4)(ii)(A), 1245.2(a)(1)(ii) (2011)). Once the purpose of advance
parole has been satisfied, it is terminated. Id.
3
In 2013, the conviction was set aside, and the case against Rais was dismissed with prejudice for want of
jurisdiction.
4
See supra note 1. The IJ concluded that Rais was an “arriving alien” over whose immigration status
USCIS had exclusive jurisdiction because Rais had last entered the United States on advance parole. Rais had not
renewed the application for adjustment of status that he had filed before he left the country, that application having
been denied because Rais and his first wife were divorcing. Instead, he filed a new application. Accordingly, the IJ
was correct: USCIS had exclusive jurisdiction over Rais’s immigration status. See Rais, 518 F. App’x at 477. An
“arriving alien” is
[1] an applicant for admission coming or attempting to come into the United States at a
port-of-entry, or [2] an alien seeking transit through the United States at a port-of-entry, or [3] an
alien interdicted in international or United States waters and brought into the United States by any
means, whether or not to a designated port-of-entry, and regardless of the means of transport. An
arriving alien remains an arriving alien even if paroled . . . and even after any such parole is
terminated or revoked.
8 C.F.R. § 1001.1(q). Although aliens who enter the United States through a grant of advance parole need
not be designated “arriving aliens” solely by reason of the grant, id., Rais now concedes that USCIS “has exclusive
No. 13-3639 Rais v. Holder Page 4
13, 2012, (A.R. 180, 204-05)]. Meanwhile, Rais had filed another application for
adjustment of status with [USCIS], which was also denied in 2012.[5]
Rais v. Holder, 518 F. App’x 476, 476 (6th Cir. 2013) (per curiam).6
Rais then filed a fourth application for adjustment of status (discounting the request for
status adjustment that he directed to the IJ) with USCIS on March 5, 2013, to which he appended
nearly one hundred pages of information to evidence his fitness to remain in the United States
and to demonstrate the hardship that removal from the country would impose on him and his
family. According to that information, Rais and his second wife are both practicing physicians
in rural western Michigan; they provide medical care to an underserved population and free
medical care to indigent patients; their two children, Rais’s mother and three sisters, and the
parents and five siblings of Rais’s wife all lawfully reside in the United States; and Rais no
longer has any family abroad.
Additionally, Rais noted that he has cooperated with the United States as a plaintiff in a
qui tam action; observed that conditions in Pakistan would be too dangerous for his children, and
especially his daughter, to return there with him; and explained that he and his wife are the
primary caretakers of their elderly parents. He also asserted that his ex-wife had submitted a
letter in support of his efforts to challenge his domestic-violence conviction. The conviction was
set aside for lack of jurisdiction in March 2013.
Rais next filed a motion with the BIA to reopen and administratively close—read:
“suspend”—the removal proceedings against him while he awaited USCIS’s ruling. He had filed
jurisdiction over his application to adjust status to that of a lawful permanent resident” “[b]ecause [his] last entry
into the U.S. was through a grant of advance parole[.]”
5
USCIS initially denied Rais’s third application (his fourth if one counts the adjustment of status that Rais
sought before the IJ) on the mistaken ground that the IJ who was presiding over the removal proceedings against
Rais “ha[d] sole jurisdiction to adjudicate any application for adjustment of status.” (A.R. 199). Rais then filed a
motion to reopen his case with the BIA on March 9, 2012; the BIA denied the motion on the ground that USCIS did,
in fact, have jurisdiction over Rais’s application. (A.R. 180 (“The USCIS decision appears to be in error, as . . .
adjudication of the adjustment application may proceed regardless of the outstanding removal order.”)). USCIS then
exercised jurisdiction over the application and dismissed it for the same reason that it had dismissed Rais’s second
application—Rais’s domestic-violence conviction.
6
On May 7, 2013, this court upheld the BIA’s decision as reasonable. Rais, 518 F. App’x at 477. Citing
8 U.S.C. §§ 1252(a)(1) and (a)(2)(B)(i), respectively, the court also concluded that it lacked jurisdiction to review
USCIS’s denial of Rais’s third application because the decision was not a final order of removal and because it
lacked the power to review discretionary denials of adjustments of status in any case. Id.
No. 13-3639 Rais v. Holder Page 5
a previous motion to reopen in March of 2012, but was unsuccessful.7 In his second motion,
filed on March 11, 2013, Rais invoked only the BIA’s authority to act sua sponte as a basis for
granting him relief, stating the following in relevant part:
This is Dr. Rais’s second motion. He filed his first motion when the
USCIS ruled that the Immigration Court, and not the USCIS, had jurisdiction over
his adjustment of status application. The USCIS later reconsidered its decision
and exercised jurisdiction over Dr. Rais’s application.
The [BIA] should exercise its sua sponte authority to reopen and
administratively close these proceedings because of the compelling humanitarian
factors.
(A.R. 23 (citing In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997)); accord A.R. 25 (also citing In
re J-J-, 21 I. & N. Dec. at 984) (“There are exceptional circumstances in Dr. Rais’s case that
warrant the sua sponte reopening of his removal proceedings.”)).
On May 15, 2013, the BIA denied the second motion as untimely and number-barred. It
observed that the motion had been filed more than a year after the final order of removal had
been entered and explained that administrative closure is “not appropriate” after the entry of a
final order.8 The BIA also reaffirmed its previous determination that USCIS had jurisdiction
over Rais’s application for adjustment of status and concluded that Rais “ha[d] not demonstrated
‘exceptional circumstances’ that would warrant the exercise of [the BIA’s] sua sponte authority
to reopen” the removal proceedings against him.9 According to the BIA, although it
“sympathize[d] with the procedural irregularities that [Rais] ha[d] faced,”10 it would not grant
Rais’s motion to reopen because USCIS appeared to be proceeding with adjudication of his latest
application.
7
See supra note 5 and accompanying text. An alien generally may file only one motion to reopen removal
proceedings. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).
8
As mentioned above, the BIA had affirmed the IJ’s order of removal against Rais on February 13, 2012.
See 8 U.S.C. § 1101(a)(47)(B) (explaining that an order of removal becomes final after the BIA affirms an IJ’s order
of removal or after the period of time during which appeal to the BIA is available expires, whichever is earlier).
9
See supra note 5 and accompanying text. Motions to reopen generally must be filed within ninety days of
the date of entry of a final removal order unless certain statutory exceptions, not alleged here, are met. See 8 U.S.C.
§ 1229a(c)(7)(C)(i)-(iv); 8 C.F.R. §§ 1003.2(c)(2), (c)(3); see also infra note 12 and accompanying text. Because
Rais filed his second motion to reopen more than a year after the BIA’s final removal order was entered, and
because a party may only file one motion to reopen removal proceedings, the BIA could only reopen the removal
proceedings against Rais by finding that his case warranted the exercise of its sua sponte authority. See 8 C.F.R.
§ 1003.2(a).
10
See supra note 5 and accompanying text.
No. 13-3639 Rais v. Holder Page 6
C. The Instant Proceedings.
Rais petitioned this court for judicial review of the BIA’s order on May 24, 2013, raising
two claims for relief: (1) whether the denial of his second motion to reopen frustrated his
statutory right to apply for adjustment of status before USCIS; and (2) whether the denial ran
counter to the policy goals of avoiding needless separation of families. He also requested that
the court stay his removal from the country and hold his petition in abeyance until USCIS
adjudicated his status-adjustment application.11
On October 30, 2013, we granted the first request but denied the second, concluding that
USCIS’s disposition of Rais’s application “w[ould] have no impact on the issues presented [to
this court].” We also concluded that Rais would not be prejudiced even if we issued a ruling
before USCIS adjudicated his application because Rais could request a stay of removal from the
Department of Homeland Security (DHS). We now conclude that we lack jurisdiction to review
the BIA’s denial of Rais’s second motion to reopen.
II. ANALYSIS
A. Statutory Prerequisites.
As of May 11, 2005, the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302,
governs judicial review of final orders of removal. The act empowers this court to review final
orders of removal as long as (1) a petition for judicial review is filed within thirty days of such
an order, and (2) the IJ who completed the removal proceedings did so within this circuit.
8 U.S.C. § 1252(a), (b)(1)-(2); see id. § 1101(a)(47)(B) (explaining that an order of removal
becomes final after the BIA affirms an IJ’s order of removal or after the period of time during
which appeal to the BIA is available expires, whichever is earlier). This authority extends to the
denial of motions to reopen removal proceedings. 12 See Haddad v. Gonzales, 437 F.3d 515, 517
(6th Cir. 2006) (citing, inter alia, Prekaj v. INS, 384 F.3d 265, 268 (6th Cir. 2004) (“The denial
11
The Attorney General did not oppose Rais’s request for a stay but objected to holding Rais’s petition in
abeyance.
12
We generally may review such a denial only to the extent that a petitioner “has exhausted all
administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1). Because Rais invoked only the
BIA’s sua sponte authority as a basis for relief in his second motion to reopen, he failed to exhaust his
administrative remedies with respect to relief on any other basis.
No. 13-3639 Rais v. Holder Page 7
of a motion to reopen is a final order subject to judicial review.”)). Additionally, the scope of
our review is limited to “the administrative record on which the order of removal is based.” Id.
§ 1252(b)(4). The standard by which we assess that record is as follows: “[A]dministrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Id.
Here, the facts are not in dispute. The BIA denied Rais’s second motion to reopen the
removal proceedings against him on May 15, 2013, and Rais filed a petition for judicial review
of that denial nine days later, on May 24, 2013. The IJ who completed removal proceedings
against Rais did so in Detroit, Michigan. Accordingly, the court’s exercise of jurisdiction over
Rais’s petition ordinarily would be proper.
B. Jurisdictional Question.
There exists, however, a jurisdictional question related to the BIA’s denial of the
underlying motion to reopen. Rais neither disputes that the motion was both untimely and
number-barred nor asserts that he qualifies for any exception to the filing requirements. See
8 U.S.C. § 1229a(c)(7)(A), (C)(i) (filing requirements); 8 C.F.R § 1003.2(c)(2) (same); id.
§ 1003.2(c)(3)(i)-(iv) (exceptions to filing requirements).13 Accordingly, the BIA’s sua sponte
authority to reopen removal proceedings was the only means by which he could have obtained
relief. See 8 C.F.R § 1003.2(a) (“The [BIA] may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision. . . . The [BIA] has discretion to deny a
motion to reopen even if the party moving has made out a prima facie case for relief.”). This
authority is available only “in exceptional situations,” In re J-J-, 21 I. & N. Dec. at 984, and “is
not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations[ ] where enforcing them might result in hardship,” id.
As the Supreme Court has explained, there is no statutory mechanism by which removal
proceedings may be reopened. INS v. Doherty, 502 U.S. 314, 322 (1992); cf. Kucana v. Holder,
13
The time for filing a motion to reopen also may be equitably tolled if a petitioner, “‘despite diligent
efforts, did not discover [his] injury until after the limitations period had expired,’” Barry v. Mukasey, 524 F.3d 721,
724 (6th Cir. 2008) (quoting Tapia-Martinez v. Gonzalez, 482 F.3d 417, 422 (6th Cir. 2007)), such as when “‘a
petitioner has received ineffective assistance of counsel,’” id. (quoting Ljucovic v. Gonzales, 144 F. App’x 500, 503
(6th Cir. 2005)).
No. 13-3639 Rais v. Holder Page 8
558 U.S. 233, 243-44 (2010) (citing 8 C.F.R. § 1003.2(a)) (explaining that the BIA’s “authority
to act on a motion to reopen” is not provided by statute “but only in the Attorney General’s
regulation”). 8 U.S.C. § 1229a(c)(7) authorizes the filing of motions to reopen but says nothing
as to the granting of such motions.14 The source of the BIA’s authority on reopening, 8 C.F.R.
§ 1003.2, “requires that under certain circumstances a motion to reopen be denied, but does not
specify the conditions under which it shall be granted[.]” Doherty, 502 U.S. at 322-23.
Consequently, the decision to grant or deny a motion to reopen is discretionary. Id. (citing INS v.
Phinpathya, 464 U.S. 183, 188 n.6 (1984)); Haddad, 437 F.3d at 517 (quoting 8 C.F.R.
§ 1003.2(a)). This court generally reviews such a decision for abuse of discretion.15 Haddad,
437 F.3d at 517 (citing, inter alia, Harchenko v. INS, 379 F.3d 405, 409 (6th Cir. 2004)); Barry
v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (citing Haddad).
With regard to the BIA’s sua sponte authority, however, we apply a different rule.
Under Barry v. Mukasey and Harchenko v. INS, the exercise of this specific authority “‘is
committed to the unfettered discretion of the BIA’ and therefore is not subject to judicial
review.” Barry, 524 F.3d at 723 (quoting Harchenko, 379 F.3d at 410-11). Our most recent
decisions on the matter—for example, Lisboa v. Holder, __ F. App’x __, 2014 WL 2869204
(June 2014), Zhang v. Holder, 702 F.3d 878, 882 (6th Cir. 2012), and Gor v. Holder, 607 F.3d
180, 182 (6th Cir. 2010)—adhere to this view. Accordingly, we lack jurisdiction to review the
BIA’s denial of Rais’s second motion to reopen.
14
“[T]here is a world of difference between the immigrant’s statutory right to file a motion to reopen . . .
and the discretionary right of the BIA—a right neither granted by nor addressed by Congress—to reopen sua
sponte.” Gor v. Holder, 607 F.3d 180, 194 (6th Cir. 2010) (Batchelder, C.J., concurring).
15
This practice appears to be in conflict with 8 U.S.C. § 1252(a)(2)(B)(ii), which states that courts do not
have jurisdiction to review actions by the Attorney General “the authority for which is specified under this
subchapter to be in the discretion of the Attorney General.” As the Supreme Court recently observed, however,
“Federal-court review of administrative decisions denying motions to reopen removal proceedings dates back to at
least 1916.” Kucana v. Holder, 558 U.S. 233, 242 (2010) (collecting cases). But, “[m]indful of the [BIA]’s ‘broad
discretion’ in such matters . . . courts have employed a deferential, abuse-of-discretion standard of review.” Id.
(citing Doherty, 502 U.S. at 322-24).
No. 13-3639 Rais v. Holder Page 9
C. Arguments in Favor of Jurisdiction.
1. Kucana.
Rais contends that the Supreme Court’s intervening decision in Kucana v. Holder
undercuts Barry and Harchenko and, recognizing that they are otherwise binding on this panel,
suggests that this court reconsider those precedents en banc. Two points are relevant here. First,
the entirety of Rais’s suggestion is as follows: “[t]he Gor panel was constrained to follow prior
circuit precedent because the Court would have to sit en banc [not] to do so. Thus far, the Court
has not considered this issue en banc but this case presents a good vehicle for doing so.” As the
Government observes, Rais neither asserts that this case meets the standard for en banc review in
Federal Rule of Appellate Procedure 35(b) nor expressly identifies “a question of exceptional
importance” or a threat to the “uniformity of the court’s decisions.” Fed. R. App. P. 35(a). He
also has not complied with Sixth Circuit Rule 35(a), which requires that a petition for en banc
review “so state plainly on the cover and in the title of the document.” Accordingly, Rais has
failed to demonstrate entitlement to en banc review.
Second, to the extent that Rais identifies a conflict between this court’s precedent and
Kucana, en banc review is not necessary to resolve it: A prior panel decision is binding on later
panels only to the extent that “an inconsistent decision of the . . . Supreme Court [does not]
require[] modification of the decision.” Ward v. Holder, 733 F.3d 601, 608 (6th Cir. 2013)
(quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).
Accordingly, this panel would not be constrained by Barry and Harchenko if, as Rais argues,
Kucana mandates a contrary result. This court already rejected en banc review in Gor, 607 F.3d
180, reh’g en banc denied, No. 08-3859, 2010 U.S. App. LEXIS 21449 (Oct. 5, 2010), and in an
unpublished case that involved similar claims, see Arestov v. Holder, 489 F. App’x 911, 921
& n.6 (6th Cir. 2012) (“With respect to the BIA’s refusal to exercise its sua sponte authority to
grant [the petitioner’s] motion to reopen, [the petitioner] contends that the Supreme Court’s
decision in Kucana . . . controls our result. . . . [O]ur court has declined to grant an initial
hearing en banc in this case.”).
Further, this court already has determined that Barry and Harchenko were not overruled
by Kucana. There, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts
No. 13-3639 Rais v. Holder Page 10
of jurisdiction to review discretionary actions by the Attorney General, “does not proscribe
judicial review of denials of motions to reopen.” 558 U.S. at 249. The reason, according to
Kucana, is that the BIA’s discretion regarding such motions is regulatory, rather than statutory,
in origin. Id. at 248 (“If Congress wanted the jurisdictional bar to encompass decisions specified
as discretionary by regulation along with those made discretionary by statute . . . [it] could easily
have said so.”).
This holding is consistent with the long-standing practice of federal courts generally to
review administrative denials of motions to reopen for abuse of discretion. Id. at 242. And, as
this court since has recognized, Kucana therefore “casts considerable doubt on . . . circuit
precedent that dictates that [the exercise of the BIA’s sua sponte authority to act on such motions
is beyond judicial review].” Gor, 607 F.3d at 182; accord id. at 197 (Cole, J., concurring).16
But the Supreme Court specifically stated in Kucana that it “[was] express[ing] no
opinion on whether federal courts may review the [BIA]’s decision not to reopen removal
proceedings sua sponte.” 558 U.S. at 251 n.18. It also expressly recognized that federal “Courts
of Appeals have held that such decisions are unreviewable because sua sponte reopening is
committed to agency discretion by law.” Id. (citing, inter alia, 5 U.S.C. § 701(a)(2)).
Accordingly, “Kucana cannot fairly be read as overruling [Barry and Harchenko],” Gor, 607
F.3d at 188, and this court has continued to apply them post-Kucana, see id. (“[Barry and
Harchenko] remain the law of this circuit.”); Zhang, 702 F.3d at 882 (relying on Barry for the
proposition that the court was “without jurisdiction to review” a “BIA determination to forgo the
exercise of its sua sponte authority”); Arestov, 489 F. App’x at 921 (“Kucana merely called into
doubt the reasoning in [Barry and Harchenko] rather than overruling them.”). Under these
precedents, we do not have jurisdiction to review the BIA’s denial of Rais’s motion to reopen.
16
Chief Judge Batchelder concurred separately in Gor “to contest the notion . . . that [Kucana] casts
considerable doubt on [Barry and Harchenko.]” Gor, 607 F.3d at 193 (Batchelder, C.J., concurring). According to
Chief Judge Batchelder, “Harchenko and Barry remain good law because they were premised on the well-
established principle that ‘review is not to be had if the statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.’” Id. at 195 (Batchelder, C.J., concurring)
(quoting Harchenko, 379 F.3d at 411).
No. 13-3639 Rais v. Holder Page 11
2. 8 U.S.C. § 1252(a)(2)(D).
Generously construed, Rais’s brief contends that judicial review nevertheless remains
available under 8 U.S.C. § 1252(a)(2)(D), which provides that federal courts may review
“constitutional claims” and “questions of law” despite “any other provision of [that] chapter.”17
The claim is weak, as it states only that “[t]he Court has jurisdiction to review [a] final order of
removal, including constitutional claims and questions of law,” and citing as support only
§ 1252(a)(1), which authorizes review of final orders of removal, and § 1252(a)(2)(D). Pet’r’s
Br. 11. Rais refers to § 1252(a)(2)(D) at one other place in his brief, as support for an equally
unsubstantiated phrase: “The Circuit Court can review constitutional claims and questions of
law.”18 But in neither place does Rais offer argument in support of this claim. Accordingly, we
consider the claim waived. See United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) (“[I]t
is a ‘settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.’” (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), cert. denied, 494 U.S. 1082 (1990)).
In any event, neither of the two claims that Rais raises before this court is a constitutional
claim, and only the first, which alleges the frustration of a statutory right, is even potentially a
17
Relying on the Second Circuit’s opinion in Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. 2006),
this court defined § 1252(a)(2)(D) to include “constitutional and statutory-construction questions, not discretionary
or factual questions” in Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (2006). Thus, a petitioner cannot create
jurisdiction by alleging “nothing more than a challenge to the [BIA’s] discretionary and fact-finding exercises
cloaked as a question of law[.]” Abdul v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009) (quoting Garcia-Aguillon v.
Mukasey, 524 F.3d 848, 850 (8th Cir. 2008)) (concluding that asserting, without evidence, that the BIA ignored its
own binding precedent does not raise a question of law); see also Reyes v. Holder, 410 F. App’x 935, 938 (6th Cir.
2011) (concluding that an objection to the weight that the BIA assigned certain evidence, without more, does not
raise a question of law); Farraj v. Holder, 316 F. App’x 398, 400 (6th Cir. 2009) (same).
After this court decided Almuhtaseb, the Second Circuit revised Chen to expand its definition of “question
of law.” Chen v. U.S. Dep’t of Justice (Chen II), 471 F.3d 315, 326-27, 329 (2d Cir. 2006) (citing INS v. St. Cyr,
533 U.S. 289 (2001)) (revised Dec. 7, 2006). Since Chen II, a circuit split has emerged over whether that term
includes only issues of statutory construction and interpretation or also includes mixed questions of law and fact.
See, e.g., Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam) (including mixed questions); Khan
v. Filip, 554 F.3d 681, 688-89 (7th Cir. 2009) (including only “pure” questions of law). This court, however,
expressly has declined to expand its definition of “question of law” to include mixed questions of law and fact.
Khozhaynova v. Holder, 641 F.3d 187, 192 (6th Cir. 2011) (“We continue to maintain a more narrow interpretation
of our jurisdiction . . . and limit review to constitutional or statutory interpretation claims.”).
18
Id. at 16. This reference has to do with judicial review of the denial of an application for adjustment of
status, not with the denial of a motion to reopen removal proceedings.
No. 13-3639 Rais v. Holder Page 12
question of law.19 But Barry and Harchenko prevent the panel from exercising jurisdiction over
even that claim.
Recall that the Supreme Court held in Kucana that 8 U.S.C. § 1252(a)(2)(B)(ii), which
strips courts of jurisdiction to review discretionary actions by the Attorney General, “does not
proscribe judicial review of denials of motions to reopen,” 558 U.S. at 249, but offered “no
opinion on whether federal courts may review the [BIA]’s decision not to reopen removal
proceedings sua sponte,” id. at 251 n.18. Accordingly, under Kucana and in the absence of
Barry and Harchenko, § 1252(a)(2)(D) would enable constitutional claims and questions of law
to survive any bar to judicial review of the BIA’s sua sponte denials that “the confluence of . . .
§ 1252(a)(2)(B)(ii) and 8 C.F.R. § 1003.2[a]” might otherwise impose. Gor, 607 F.3d at 187.
But Barry and Harchenko expressly hold that the BIA’s exercise of its sua sponte
authority “‘is committed to [its] unfettered discretion . . . and therefore is not subject to judicial
review.’” Barry, 524 F.3d at 723 (quoting Harchenko, 379 F.3d at 410-11). And, as Chief Judge
Batchelder has noted, neither case relied on § 1252(a)(2)(B)(ii). Gor, 607 F.3d at 195
(Batchelder, C.J., concurring). Instead, “[t]he Harchenko and Barry panels concluded, as has
nearly every other Circuit to consider the question, that the BIA’s exercise of its sua sponte
authority was not reviewable because there was simply ‘no law to apply.’”20 Id. (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). Thus, according to
Chief Judge Batchelder, “the firm requirement that only Congress may remove [the courts’]
jurisdiction [to review the exercise of that authority] simply does not exist.” Id.
Put differently, Congress need not designate the BIA’s sua sponte authority as
discretionary by statute in order for the Attorney General’s regulatory determination that the
power is discretionary, see 8 C.F.R. § 1003.2(a), to deprive courts of jurisdiction to review its
19
Rais’s statutory-frustration claim may raise a question of law. See supra note 16 and accompanying text;
cf. United States v. Cassidy, 899 F.2d 543, 545 (6th Cir. 1990) (“Statutory interpretation is a question of law which
this Court reviews de novo.”). Rais’s second claim asserts that the BIA abused its discretion by denying his motion
to reopen on jurisdictional grounds and thereby violating “the Government’s stated public policy goals” to “avoid
needless separations of families.” But Rais identifies no statutes, regulations, or other legal authorities for the
proposition that he has a protectable interest in such goals; therefore, the claim does not raise a question of law.
20
As Harchenko explained, “[8 C.F.R. § 1003.2(a)] provides no standard by which to judge the agency’s
exercise of discretion. It allows the BIA to reopen proceedings in exceptional situations; it does not require the BIA
to do so. As such, this court is without jurisdiction to review the BIA’s decision declining to exercise its
discretion[.]”). 379 F.3d at 411; see also Barry, 524 F.3d at 723 (quoting this language from Harchenko).
No. 13-3639 Rais v. Holder Page 13
exercise. This is so because “[t]he power of the BIA to reopen sua sponte arises only from its
own regulations.” Gor, 607 F.3d at 195 (Batchelder, C.J., concurring) (second emphasis added).
Consequently, Congress’s determination in 8 U.S.C. § 1252(a)(2)(D) that federal courts may
review “constitutional claims” and “questions of law” despite “any other provision of [that]
chapter,” has no bearing on the question of whether courts may review the BIA’s exercise of its
sua sponte authority, for which no chapter of any legislation provides. And because Barry and
Harchenko hold that the BIA’s exercise of its sua sponte authority is not subject to judicial
review, the panel lacks jurisdiction over Rais’s petition even if it alleges constitutional claims or
questions of law.
III. CONCLUSION
Rais failed to satisfy the requirements for filing a second motion to reopen the removal
proceedings against him and claims shelter under no exception to those requirements.
Consequently, the BIA’s sua sponte authority to grant his motion was the only means by which
he could have obtained relief. Binding circuit precedent, unimpaired by recent Supreme Court
case law, establishes that this court does not have jurisdiction to review the BIA’s decision to
refrain from exercising that authority. We therefore DISMISS Rais’s petition for judicial review
of the BIA’s decision for want of jurisdiction.