Agron Kucana v. Eric Holder, Jr. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1002
AGRON KUCANA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
____________
ARGUED DECEMBER 6, 2007—DECIDED JULY 7, 2008
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
RIPPLE, Circuit Judges.
EASTERBROOK, Chief Judge. Agron Kucana, a citizen of
Albania, entered the United States as a business visitor
in 1995 and did not leave when his visa expired. He
applied for asylum but, when he did not appear at the
hearing in the fall of 1997, he was ordered removed in
absentia. He soon filed a motion to reopen, contending that
he had overslept. An immigration judge denied that
motion, and in 2002 the Board of Immigration Appeals
affirmed. Kucana did not seek judicial review—nor did he
2 No. 07-1002
comply with the order to quit the United States. In 2006
Kucana filed another motion to reopen, this time con-
tending that country conditions in Albania had deterio-
rated and that he would be a victim of persecution
should he return there. Kucana, who describes himself as
a supporter of democracy and free markets, contends
that holders of these views are at risk of beatings and
murder in Albania. The immigration judge denied this
motion, and on appeal the Board held that the IJ lacked
jurisdiction, because successive motions to reopen must
be filed directly with the Board itself.
Treating Kucana’s papers as a (second) motion to reopen,
the Board denied that relief because conditions in Albania
have improved since 1997. In 2006 a “Stabilization and
Association Agreement” between Albania and the Euro-
pean Union was ratified. In 2007 a visa agreement was
reached, so Albanians can travel throughout the EU.
Albania is today a democratic nation with international
guarantees of human rights; there have been no reported
political killings or detentions for years.
Kucana argues in this court that the Board abused its
discretion because it did not mention Professor Bernd
Fischer’s affidavit discussing conditions in Albania. Abuse
of discretion is the right standard. No statute requires the
Board to reopen under any circumstances, and a regulation
confirms that the Board has discretion to deny relief even
to an alien who would have received a favorable decision,
had the argument been presented earlier. 8 C.F.R.
§1003.2(a). It is difficult to perceive an abuse of discre-
tion, for Prof. Fischer’s affidavit does not document a
change in Albanian conditions since 1997; it is instead a
historical narrative reaching back to the time when Albania
was a totalitarian dictatorship. But the parties’ agreement
No. 07-1002 3
that “abuse of discretion” is the standard of review led us
to wonder whether we should be considering Kucana’s
argument at all.
As amended by the Real ID Act of 2005, the Immigration
and Nationality Act limits federal courts’ jurisdiction to
review discretionary decisions of immigration officials.
Section 242(a)(2)(B)(ii) of the Act, 8 U.S.C. §1252(a)(2)(B)(ii),
provides that no court has 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 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.” Section 1158(a) deals with applica-
tions for asylum, but the decision that Kucana wants us
to review is not one “under §1158(a)"; it is a decision not
to reopen, and thus not to revive a request for asylum
that had been abandoned in 1997 when Kucana failed
to attend the hearing scheduled to address that subject.
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 v.
Gonzales, 502 F.3d 659 (7th Cir. 2007), that §1252(a)(2)(B)(ii)
applies to discretionary decisions under regulations that
are based on and implement the Immigration and Nation-
ality 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
4 No. 07-1002
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).
We asked the parties for post-argument memoranda
on the effect of Ali and §1252(a)(2)(B)(ii). Surprisingly,
the Department of Justice argued that §1252(a)(2)(B)(ii)
does not cover decisions not to reopen. The principal
reason for this conclusion (at least the one to which the
memorandum devotes the most space) is that in cases such
as Kucana’s the Board is making a factual decision
(whether country conditions have worsened) rather than
a discretionary one. This does not begin to distinguish Ali.
Before deciding whether to grant a continuance (the
discretionary decision), an immigration judge must decide
whether there is a good reason for more time, which
depends in turn on whether the statements of fact said to
constitute the good cause are true. Surely the evaluation
of the alien’s circumstances cannot be reviewed notwith-
standing §1252(a)(2)(B)(ii) and Ali.
Every discretionary decision, unless made by the flip
of a coin, rests on the tribunal’s appreciation of the state
of the litigation and the state of the world. Section
1252(a)(2)(B)(ii) could not mean that a decision is
unreviewable when made randomly or unthinkingly,
but that if the agency pays attention to an application
and has reasons for acting as it does, then those reasons
can be reviewed (because in principle the reasons precede,
and do not equal, the discretion). This is a stripe of argu-
ment that we have considered in other contexts and
found wanting. See, e.g., Daniels v. Liberty Mutual Insur-
ance Co., 484 F.3d 884 (7th Cir. 2007) (prohibition on
appellate review of remand orders does not leave the
court of appeals free to review, as an independent matter,
No. 07-1002 5
the reasons behind the order); Rubel v. Pfizer Inc., 361 F.3d
1016 (7th Cir. 2004) (same). And we have applied that
understanding to immigration law. See, e.g., Jiménez
Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008);
Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).
One cannot review the subsidiary findings that motivate
an order, when the order itself is unreviewable; that
would be an advisory opinion. See Powerex Corp. v. Reliant
Energy Services, Inc., 127 S. Ct. 2411, 2419 (2007).
A second contention in the Department’s post-argument
memorandum is that this court has already held
§1252(a)(2)(B)(ii) inapplicable to reopening decisions. The
panel in Singh v. Gonzales, 404 F.3d 1024, 1026–27 (7th
Cir. 2005), said this:
Before 1996, the authority for motions to reopen
derived solely from the regulations. Congress
codified the motion to reopen process in 1996 in
8 U.S.C. §1229a(c)(6), a provision within the
subchapter referred to in [§1252(a)(2)(B)(ii)]. How-
ever, the statutory language only describes the
contents of motions to reopen and the filing dead-
lines. Conspicuously absent is any specific lan-
guage entrusting the decision on a motion to
reopen to “the discretion of the Attorney General.”
Moreover, a subsection of §1252, the section that
also contains the jurisdiction-stripping provision,
provides that when a petitioner appeals a motion
to reopen or reconsider an order, that appeal
should be consolidated with the appeal of the
underlying order. 8 U.S.C. §1252(b)(6). That provi-
sion would be unnecessary if §1252(a)(2)(B)(ii)
deprived us of jurisdiction in the first place. See
Stone v. INS, 514 U.S. 386, 397 (1995) (noting that
6 No. 07-1002
courts must construe statutes to give effect, if
possible, to every provision).
This passage gives two reasons: first, that the extent of
the Board’s discretion has been set by regulation rather
than statute; second, that the clause allowing consolida-
tion of challenges to original and reopening decisions
would be unnecessary if §1252(a)(2)(B)(ii) prevents review
of decisions not to reopen. The first of these reasons is
not tenable in this circuit after Ali. The second needs a
fresh look.
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 reopen-
ing are within our jurisdiction to the extent provided
by §1252(a)(2)(D):
Nothing in subparagraph (B) or (C), or in any other
provision of this chapter (other than this section)
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.
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.
No. 07-1002 7
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. This opinion has been circulated under Cir-
cuit Rule 40(e) to all active judges. A majority did not
favor a hearing en banc. (Judges Flaum, Ripple, Rovner,
Wood, and Williams voted in favor of a hearing en banc.)
What remains is the question whether Kucana has
advanced any “constitutional claims or questions of law”.
His brief does not phrase his contentions in those terms;
the entire argument is that the Board abused its discretion.
And although the ninth circuit might deem such an
argument a proposition “of law” (because the law requires
the Board not to abuse its discretion), see Ramadan v.
Gonzales, 479 F.3d 646 (9th Cir. 2007), rehearing en banc
denied, 504 F.3d 973 (9th Cir. 2007) (O’Scannlain, J., and
eight other judges dissenting), we explained in Jiménez
Viracacha why Ramadan misreads §1252(a)(2)(D).
Kucana offers a second argument in support of reopen-
ing: After 2002 his mother (who has become a citizen of the
United States) filed on his behalf an application for a
visa as an immediate relative. The Board did not men-
tion this when declining to reopen his case. Although the
Board does not have any obligation to write an opinion
8 No. 07-1002
explaining each decision not to reopen, it does have an
obligation to consider every argument made to it. Some-
times an opinion addressing one subject (such as asylum)
while not mentioning another (such as an immediate-
relative visa) may imply that the latter has been over-
looked rather than decided. And we may assume for the
sake of argument that ignoring a potentially dispositive
issue is an error of law that would allow review under
§1252(a)(2)(D). The Board must exercise discretion; only
when it has done so is its decision sheltered by
§1252(a)(2)(B)(ii).
This does not help Kucana, however, because he did not
present to the Board any argument that his mother’s
application justifies reopening to give him an opportunity
to apply for adjustment of status. He attached the I-130
immediate-relative form to his motion before the immigra-
tion judge but did not make any argument based on
that visa application. Kucana’s appeal to the Board did
not address this subject; all of his papers dealt exclu-
sively with his contention that conditions in Albania
have changed. So it is no surprise that the Board’s opinion
did not address this subject; an agency need not respond
to potential arguments lurking in the record but never
advanced by counsel.
The petition for review is dismissed for lack of jurisdic-
tion.
RIPPLE, Circuit Judge, concurring, dubitante. I agree with
the principal opinion that our disposition of the present
No. 07-1002 9
case appears to be controlled by our holding in Ali v.
Gonzales, 502 F.3d 659 (7th Cir. 2007). Ali held that the
jurisdictional bar contained in 8 U.S.C. § 1252(a)(2)(B)(ii)
“applie[d] to discretionary decisions under regulations
that are based on and implement the Immigration and
Nationality Act.” Kucana, slip op. at 3. The principal
opinion further explains that
[t]he 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 discre-
tionary; both regulations draw their force from
provisions in the Act allowing immigration offi-
cials to govern their own proceedings. It follows
that they are equally subject to § 1252(a)(2)(B)(ii).
Id. (internal citations omitted). Ali, therefore, operates as
a de facto overruling of our decision in Singh v. Gonzales,
404 F.3d 1024, 1026-27 (7th Cir. 2005),1 which held that
§ 1252 was not a bar to our review of motions to reopen
because the “authority for motions to reopen derived solely
from the regulations.” Singh also noted that the statute
was devoid of “any specific language entrusting the
decision on a motion to reopen to ‘the discretion of the
Attorney General.’ ” Id.
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.
1
Ali was circulated to the entire court pursuant to Circuit
Rule 40(e).
10 No. 07-1002
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 pro-
ceedings.” 502 F.3d at 660. We further observed that “[t]he
regulation regarding continuances simply implements the
immigration judge’s statutory authority to control the
course of removal proceedings.” Id. 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 Immigra-
tion Appeals that are based on a mistake or misunder-
standing of the factual basis of the claim—decisions that
the Supreme Court has analogized to motions under
Federal Rule of Civil Procedure 60(b). See Stone v. INS,
514 U.S. 386, 405 (1995). Furthermore, although the pre-
sent case involves only a motion to reopen, Ali’s rationale
would appear to apply equally to motions to recon-
sider—the basis for which must be a mistake or misappre-
hension of law. See 8 C.F.R. 1003.2. 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
No. 07-1002 11
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.
CUDAHY, Circuit Judge, dissenting. In Ali v. Gonzales,
502 F.3d 659 (7th Cir. 2007), 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 re-
viewing orders denying such motions. Only the Eighth
and Tenth Circuits had held that § 1252(a)(2)(B)(ii) pre-
cludes federal courts of appeals from reviewing an im-
migration judge’s denial of a continuance. Id. at 664 (citing
Yerkovich v. Ashcroft, 381 F.3d 990, 993-95 (10th Cir. 2004);
Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004)).
Yet even these courts continue to exercise jurisdiction
over motions to reopen. See Miah v. Mukasey, 519 F.3d 784,
789 n.1 (8th Cir. 2008); Thongphilack v. Gonzales, 506 F.3d
1207, 1209-10 (10th Cir. 2007). The principal opinion
would cause us to become a minority within the min-
ority, 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.
In approaching the problem presented by the present
case, I believe that the first effort should be to reconcile
12 No. 07-1002
Ali with Singh v. Gonzales, 404 F.3d 1024 (7th Cir. 2005)
since the policies underlying stare decisis suggest the
preferability of reconciliation of precedent to its rejection
in whole or in part. McClain v. Retail Food Employers Joint
Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005). And I be-
lieve that these two precedents may be comfortably
reconciled.
In Singh, we held that the lack of “specific language
entrusting the decision on a motion to reopen to ‘the
discretion of the Attorney General’ ” meant that the court
had jurisdiction to review the BIA’s decision on a
motion to reopen. Singh, 404 F.3d at 1026-27 (quoting
8 U.S.C. § 1252(a)(2)(B)(ii)). In Ali, the petitioner ap-
pealed an immigration judge’s denial of his motion for
a continuance. We found that although continuances
were mentioned only in immigration regulations and
not in a statute, an immigration judge’s authority to grant
a continuance derives from a statute. Ali, 502 F.3d at
663 (citing 8 U.S.C. § 1229a(a)(1) & (b)(1)). We reasoned
that
the immigration judge’s authority to conduct and
control the course of removal proceedings is
“specified in” subchapter II of the INA, and this
necessarily encompasses the discretion to con-
tinue the proceedings, whether on the motion of
a party or sua sponte. The jurisdictional bar there-
fore applies to continuance decisions.
Id. (emphasis in original).
I do not think Singh and Ali are necessarily incompatible.
8 U.S.C. § 1229a(b) makes clear that the immigration
judge has plenary power over the conduct of removal
proceedings and gives examples of the kinds of discretion-
No. 07-1002 13
ary acts the judge may perform in the course of the pro-
ceedings. In contrast, § 1229a(c)(7), the section governing
motions to reopen, says nothing at all about the agency’s
authority to decide motions to reopen. Rather, it
simply lays out the requirements an alien must fulfill
when filing a motion to reopen.
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 provi-
sions 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.
There is a “strong presumption that Congress intends
judicial review of administrative action.” Traynor v.
Turnage, 485 U.S. 535, 542, 108 S. Ct. 1372, 99 L. Ed. 2d 618
(1988) (citation omitted). It is only a presumption, of
course, not an ironclad rule, and is overcome where it is
clear that Congress intended to strip federal courts of
their power to review agency decisions. Id. Part of our
rationale in Ali was based on the fact that Ali was
seeking an adjustment of status under 8 U.S.C. § 1255.
Section 1252(a)(2)(B)(i) expressly bars us from reviewing
such decisions, providing that “no court shall have juris-
diction to review (i) any judgment regarding the granting
of relief under section . . . 1255 of this title.” A clear Con-
gressional command would have barred our review of
the final decision, and statutory language suggested the
plenary nature of the IJ’s authority over the procedural
steps on the way to that unreviewable final decision.
Thus, Ali’s continuance motion “was a procedural step
14 No. 07-1002
along the way to an unreviewable final decision.” Ali,
502 F.3d at 664.
In contrast, the underlying relief sought in the present
case is asylum—a discretionary but reviewable deci-
sion—and there is no statutory language suggesting the
level of deference to be afforded a denial of a motion to
reopen. 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 (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 administra-
tive process not necessarily renowned for its reliability.
RIPPLE, Circuit Judge, with whom ROVNER, WOOD and
WILLIAMS, Circuit Judges, 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 v. Gonzales, 502 F.3d 659 (7th Cir. 2007). In Ali, we
addressed our authority to hear appeals from the denial of
a motion to continue—an interim decision that is discre-
tionary in nature. 502 F.3d at 660. Here, however, the
rationale of Ali is being applied beyond the realm of
No. 07-1002 15
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 misun-
derstanding of the factual basis of the claim. This expan-
sion 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 Fed-
eral Rule of Civil Procedure 60(b), see Stone v. INS, 514
U.S. 386, 405 (1995). Indeed, since the panel’s considera-
tion 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). 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 Cir-
cuit 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. See
Sup. Ct. R. 10.
USCA-02-C-0072—7-7-08