Thompson v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1823
RICHARD MARVIN THOMPSON,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Gregory Romanovsky, with whom Romanovsky Law Offices was on
brief, for petitioner.
William M. Tong, Attorney General of Connecticut, with whom
Jane Rosenberg, Assistant Attorney General, and Clare Kindall,
Solicitor General, were on brief, as amicus curiae for the State
of Connecticut.
Trina Realmuto, Kristin Macleod-Ball, Emma Winger, and
American Immigration Council, as amicus curiae for the American
Immigration Council.
Jessica E. Burns, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Keith I. McManus, Assistant Director, Office
of Immigration Litigation, were on brief, for respondent.
May 21, 2020
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TORRUELLA, Circuit Judge. Petitioner Richard Marvin
Thompson ("Thompson") appeals the Board of Immigration Appeals'
("BIA") denial of his motion to reopen sua sponte his immigration
proceedings, alleging that the BIA committed a clear legal error.
Thompson asks this Court to exercise jurisdiction to review whether
the BIA clearly erred when it determined that he was not entitled
to relief from deportation under section 237(a)(2)(A)(vi) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)
(A)(vi) (the "Pardon Waiver Clause"), because a pardon issued by
the Connecticut Board of Pardons and Paroles is "not effective for
purposes of establishing entitlement to" a waiver of deportation.
Because we find that this Court has jurisdiction to review this
colorable legal question and because, here, the BIA departed from
its settled course of adjudication, we vacate the decision of the
BIA and remand for further proceedings consistent with this
opinion.
I.
Thompson is a citizen of Jamaica. In 1997, at the age
of fourteen, he was admitted to the United States as a lawful
permanent resident. When he was seventeen years old, Thompson was
arrested and charged with second-degree assault, a felony in
violation of Connecticut General Statute § 53a-60, to which he
pleaded guilty in Connecticut state court in 2001. He received a
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suspended sentence and three years' probation. Without incident,
Thompson completed the terms of his probation, received his GED,
and worked for over ten years as a commercial operator.
Based on his 2001 conviction, in March 2012, the United
States Department of Homeland Security initiated removal
proceedings against Thompson charging him as removable pursuant
to: (1) 8 U.S.C. § 1227(a)(2)(A)(i), for having committed a crime
of moral turpitude within five years after admission and for which
a term of imprisonment of one year or more could be imposed; and
(2) 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an
aggravated felony. Prior to his deportation hearing, Thompson
applied to the United States Citizenship and Immigration Services
("USCIS") for derivative citizenship through his U.S.-citizen
father. USCIS denied the application, and an Immigration Judge
adopted the USCIS's reasoning, later affirmed by the BIA and this
Court in Thompson v. Lynch, that Thompson did not derive
citizenship from his father because Thompson's parents had never
been legally married and were thus never legally separated as
required by 8 U.S.C. § 1432(a) (repealed 2000). See Thompson v.
Lynch, 808 F.3d 939, 940-41 (1st Cir. 2015). Thompson subsequently
filed two unsuccessful motions to reopen with the BIA.
On March 14, 2018, detained and appearing pro se,
Thompson filed the present motion to reopen and terminate his
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removal proceedings. Thompson's motion requested that the BIA
exercise its sua sponte authority to reopen proceedings because he
had been granted a full and unconditional pardon by the Connecticut
Board of Pardons and Paroles for his 2001 conviction, qualifying
him for relief under the Pardon Waiver Clause.
On August 7, 2018, the BIA denied the motion. The BIA
found Thompson's motion untimely and number-barred, see 8 C.F.R.
§ 1003.2(c), and "decline[d] to exercise [its] sua sponte
authority." The BIA explained that Thompson had failed to show
that he was eligible for a pardon waiver, which would otherwise
automatically waive his removability. The BIA acknowledged that
it "h[as] long recognized that in some states, the supreme
pardoning power may rest with some other executive body," but that
"the [Connecticut] Board of Pardons and Paroles is a legislatively
derived body." Therefore, it reasoned that "even though the Board
of Pardons and Paroles is the supreme pardoning power in
Connecticut, that power is not executively derived, and so it is
not effective for purposes of establishing entitlement to [a pardon
waiver under] section 237(a)(2)(A)(vi) of the [INA]." The BIA
added that Thompson's uncertified photocopy of his pardon failed
to meet "his heavy burden" for reopening. Thompson timely
appealed.
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II.
A. Standard of Review and Jurisdiction
We begin by addressing our jurisdiction to review
Thompson's claim that the BIA committed legal error when it denied
his motion to reopen sua sponte. We first note that "a motion to
reopen removal proceedings is a disfavored tool." Gyamfi v.
Whitaker, 913 F.3d 168, 172 (1st Cir. 2019) (quoting Mazariegos v.
Lynch, 790 F.3d 280, 285 (1st Cir. 2015)). To the extent we have
jurisdiction, we generally review the BIA's decision on a motion
to reopen for abuse of discretion. Id.; see 8 U.S.C. § 1252(a)(1),
(a)(5). An abuse of discretion occurs if the BIA "committed an
error of law or exercised its judgment in an arbitrary, capricious,
or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir.
2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.
2014)). Within this deferential framework, "[w]e review questions
of law de novo." Bolieiro v. Holder, 731 F.3d 32, 36 (1st Cir.
2013) (alterations ours).
The BIA possesses discretionary authority to grant or
deny a motion to reopen pursuant to 8 C.F.R. § 1003.2(a). The
regulation states:
The Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a
decision. . . . The decision to grant or deny a
motion to reopen or reconsider is within the
discretion of the Board, subject to the restrictions
of this section. The Board has discretion to deny a
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motion to reopen even if the party moving has made
out a prima facie case for relief.
8 C.F.R. § 1003.2(a).
Until Congress enacted the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.
104–208, Div. C., 110 Stat. 3009–546, there were no time limits
for requesting the reopening of immigration proceedings. By
instituting time limits and number restrictions, IIRIRA
"transform[ed] the motion to reopen from a regulatory procedure to
a statutory form of relief available to the alien." Kucana v.
Holder, 558 U.S. 233, 249 (2010) (alteration in original) (quoting
Dada v. Mukasey, 554 U.S. 1, 14 (2008)). The statute codified the
right to file one motion to reopen within ninety days of the date
of entry of a final order of removal, with a few narrow exceptions.
See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i). A motion to reopen
that comports with the time and number requirements is subject to
judicial review under the standard laid out above. See Guerrero
v. Holder, 766 F.3d 122, 126 (1st Cir. 2014).
When a motion falls outside of the timing and number
restrictions imposed by IIRIRA and does not fit into one of the
statutory exceptions, the only way for the petitioner to reopen
proceedings is to request that the BIA reopen them sua sponte,
i.e., "on its own motion" (nomenclature that we admit is
confusing). See Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir.
-7-
2018) (citing 8 C.F.R § 1003.2(a)); Bonilla v. Lynch, 840 F.3d
575, 585 (9th Cir. 2016). The BIA will only grant a motion sua
sponte if it is "persuaded that the respondent's situation is truly
exceptional." In re G–D–, 22 I. & N. Dec. 1132, 1134 (B.I.A.
1999).
In Luis v. INS, we held that we lacked jurisdiction to
review the BIA's decision on a motion to reopen sua sponte "because
the decision of the BIA whether to invoke its sua sponte authority
is committed to its unfettered discretion." 196 F.3d 36, 40 (1st
Cir. 1999). This is because, in the absence of "judicially
manageable standards," we "would have no meaningful standard
against which to judge the agency's exercise of discretion." Id.
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). See
5 U.S.C. § 701(a)(2) (disallowing judicial review of agency action
when said action "is committed to agency discretion by law"). We
have affirmed this general rule from Luis many times. See Gyamfi,
913 F.3d at 176; Reyes v. Sessions, 886 F.3d 184, 188 (1st Cir.
2018); Ramírez-Matías v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017);
Guerrero, 766 F.3d at 126; Neves v. Holder, 613 F.3d 30, 35 (1st
Cir. 2010). Still, we have never decisively answered the
questions presented here: whether this Court has jurisdiction to
review motions to reopen sua sponte for the limited purpose of
rectifying legal or constitutional errors by the BIA about whether
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it has the authority to exercise its discretion or whether 8 U.S.C.
§ 1252(a)(2) allows this Court to assert jurisdiction over a
challenge to such an error, because it is a legal one. See Lemus,
900 F.3d at 19. Let us explain.
In 2005, several years after we announced our holding in
Luis, Congress passed the REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 302. See Ramírez-Matías, 871 F.3d at 68. While IIRIRA
had earlier barred judicial review of "most discretionary
decisions or actions of the Attorney General and Secretary of
Homeland Security . . . under a particular statutory subchapter,"
Bonilla, 840 F.3d at 587 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)),
the REAL ID Act clarified:
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.
8 U.S.C. § 1252(a)(2)(D). Thereby, denials of discretionary
relief, 8 U.S.C. § 1252(a)(2)(B), and final orders of removal
against criminal aliens, 8 U.S.C. § 1252(a)(2)(C), were explicitly
made reviewable when the petitioner raised constitutional claims
or questions of law.
It is clear to us that the plain language of
§ 1252(a)(2)(D) evidences congressional intent to render purely
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discretionary decisions reviewable for legal error. This suggests
that Congress did not intend such decisions to evade review simply
because they are discretionary. On the contrary, § 1252(a)(2)(D)
suggests that when the BIA makes a discretionary decision on the
basis of a legal rationale, there is law for the court to apply,
and it is the duty of a reviewing court to do so. Therefore,
while the rule we announced in Luis generally still holds (i.e.,
in the absence of a meaningful legal standard, we lack jurisdiction
to review the BIA's decision of whether to reopen a case sua
sponte), § 1252(a)(2)(D) acknowledges that sometimes there are
judicially manageable standards to apply even when the relief
sought is purely discretionary -- as is the case with motions to
reopen sua sponte.
By its terms, § 1252(a)(2)(D) states that no provision
of Chapter 12 of Title 8 of the INA limiting judicial review shall
be construed to deprive the appropriate appellate court of
jurisdiction over legal and constitutional challenges. The
provision furnishing the Attorney General with the authority to
create the regulations that provide for sua sponte reopening is
located within INA Chapter 12. See 8 U.S.C. § 1103(a); see also
Kucana, 558 U.S. at 254 (Alito, J., concurring) ("[I]t seems clear
that § 1003.2, at least insofar as it gave the Attorney General
the discretionary authority that he exercised in this case, is
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grounded on authority conferred under Subchapter I of Chapter 12
of Title 8." (emphasis removed)).1 There would seem to be a strong
argument that motions to reopen, even of the sua sponte nature,
come within the scope of § 1252(a)(2)(D).
While this Court has thus far avoided deciding whether
§ 1252(a)(2)(D) allows courts of appeals to conduct a limited
review of the BIA's decisions on motions to reopen sua sponte,
several other circuits have found that it does. See Bonilla, 840
F.3d at 587 ("The recognition in § 1252(a)(2)(D) that legal or
constitutional issues are reviewable even when the statute makes
the underlying decision discretionary is reflective of a general
recognition that there is no preclusion of such review if otherwise
ordinarily available."); Salgado-Toribio v. Holder, 713 F.3d 1267,
1271 (10th Cir. 2013) ("We do have jurisdiction to review
'constitutional claims or questions of law' raised in a petition
for review." (quoting 8 U.S.C. § 1252(a)(2)(D))); Cevilla v.
1 The government's suggestion that judicial review of motions to
reopen sua sponte "circumvent[s] the time and numerical limits
Congress imposed on motions to reopen" strikes more at the
regulation permitting sua sponte reopening, 8 C.F.R. § 1003.2(a),
which predates the codification of 8 U.S.C. § 1229a, rather than
at limited judicial review. As we are to assume that Congress
legislated with the knowledge of the existing scheme and awareness
that the BIA was authorized to reopen cases beyond the statutory
time and number limits, we are not persuaded that limited judicial
review contravenes congressional intent. See Kucana, 558 U.S. at
239.
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Gonzales, 446 F.3d 658, 660 (7th Cir. 2006) ("[T]he general 'no
law to apply' principle of judicial review of administrative action
has been superseded in the immigration context by 8 U.S.C.
§ 1252(a)(2), as amended by the REAL ID Act in May 2005."); see
also Nawaz v. Holder, 314 F. App'x 736, 737 (5th Cir. 2009) ("While
we do not have jurisdiction to consider [petitioner]'s
non-constitutional challenges to the BIA's refusal to reopen his
removal proceedings sua sponte, we retain jurisdiction to consider
constitutional challenges that were raised before the BIA."
(citing 8 U.S.C. § 1252(a)(2)(D))); Tamenut v. Mukasey, 521 F.3d
1000, 1005 (8th Cir. 2008) (noting jurisdiction generally "over
any colorable constitutional claim").
Until now, we have deferred answering the question of
jurisdiction in the absence of any colorable constitutional or
legal challenges. See Gyamfi, 913 F.3d at 177 ("[E]ven if
§ 1252(a)(2)(D) serves as a basis for jurisdiction, [petitioner]
has not set forth any colorable claims."); Lemus, 900 F.3d at 19
("Section 1252(a)(2)(D) 'only arguably applies to a petitioner's
constitutional or legal challenges if they are colorable' . . .
and the [petitioner]s' are not." (citing Reyes, 886 F.3d at 188));
Ramírez-Matías, 871 F.3d at 69 ("[W]e don't have to decide what to
do about the issue now. The problems with [petitioner]'s appeal
are titanic, and the jurisdictional question is just the tip of
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the proverbial iceberg." (citation omitted)). But, decisions on
motions to reopen sua sponte appear to be the sort of decision
that Congress authorized appellate courts to review for legal or
constitutional error via its instruction at § 1252(a)(2)(D) to
construe even discretionary agency decisions authorized by Chapter
12 of Title 8 of the INA as subject to limited judicial review.
Even insofar as the government is correct that
§ 1252(a)(2)(D) does not strictly govern, Luis did not hold that
the no-law-to-apply ground for finding no reviewability applied
even in a case in which the BIA gives as its reason for not
exercising its discretion what appears to be a mistaken view of a
legal bar to its exercise of that discretion. Nor does any of our
post-Luis precedent clearly so hold. Certainly, the government
identifies no such case.
Moreover, in accord with the conclusion that we have not
so held, Luis itself cited to Heckler v. Chaney, see Luis, 196
F.3d at 40-41 (quoting Chaney, 470 U.S. at 830-33), which construed
the committed-to-agency-discretion-by-law exception to
reviewability in the Administrative Procedure Act and, in doing
so, explicitly declined to extend its holding to the situation
where an agency declines "to institute proceedings based solely on
the belief that it lacks jurisdiction," see Chaney, 470 U.S. at
833 n.4. Thus, there is no reason to construe this regulation to
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be more resistant to review, especially given the general
presumption of reviewability. See Kucana, 558 U.S. at 251-52
(applying the "presumption favoring judicial review of
administrative action" to allow review over motions to reopen).
The enactment of § 1252(a)(2)(D) and its exception
allowing for the review of questions of law even as to
discretionary decisions by the BIA further supports the conclusion
that it would be wrong to conclude that a court may not review the
BIA's erroneous legal determination that there is a legal barrier
to its granting of a motion to reopen sua sponte. Even if that
part of § 1252 does not govern a motion to reopen sua sponte, we
see no reason to construe the provision allowing such motions in
a manner that would permit legal errors regarding the existence of
discretion to grant these motions to be insulated from review when
Congress has made clear that other such legal errors concerning
other exercises of discretion are reviewable. And we credit
Thompson with raising a colorable claim of such a legal error.
Thus, we join the Second, Third, Fifth, Seventh, Eighth,
and Ninth Circuits in holding that we have limited jurisdiction to
review constitutional claims 2 or errors of law that arise in
2 The Fifth and Eighth Circuits have only expressed their
jurisdiction as to constitutional challenges. See Nawaz, 314
F. App'x at 737; Tamenut, 521 F.3d at 1005.
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motions to reopen sua sponte.3 See, e.g., Pllumi v. Att'y Gen. of
U.S., 642 F.3d 155, 160 (3d Cir. 2011) ("[W]hen presented with a
BIA decision rejecting a motion for sua sponte reopening, we may
exercise jurisdiction to the limited extent of recognizing when
the BIA has relied on an incorrect legal premise."); Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009) ("[W]here the Agency may
have declined to exercise its sua sponte authority because it
misperceived the legal background and thought, incorrectly, that
a reopening would necessarily fail, remand to the Agency for
reconsideration in view of the correct law is appropriate."). We
also note that even one of the two circuits that has held otherwise
has not foreclosed the possibility that review could lie when the
claimed legal error is constitutional in nature. See Butka v.
U.S. Att'y Gen, 827 F.3d 1278, 1285 (11th Cir. 2016). We see no
basis, however, for limiting the legal errors regarding a limit on
the BIA's discretion to grant such a motion to those legal errors
that concern the Constitution rather than those that concern the
extent of its legal power more generally. When the BIA's denial
of a motion to reopen rests on a legal error, it is appropriate to
3 We note that the Sixth and Eleventh Circuits have taken the
opposite tack, finding that there is "simply no law to apply,"
when asked to review motions to reopen sua sponte. Rais v. Holder,
768 F.3d 453, 464 (6th Cir. 2014) (internal quotation marks
omitted); see Butka v. U.S. Att'y Gen., 827 F.3d 1278, 1286 n.7
(11th Cir. 2016).
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"remand to the BIA so it may exercise its authority against the
correct legal background." Bonilla, 840 F.3d at 588 (internal
quotation marks omitted) (quoting Pllumi, 642 F.3d at 160).
The government argues, in protest to our jurisdiction,
that the BIA's decision with respect to a motion to reopen
"reflect[s] only that in the B[IA]'s judgment the case does not
constitute a truly exceptional situation" and does "not
necessarily reach[] the merits of any new legal argument." The
government bases its contention on a passage from ICC v.
Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987), but the
Court there was explaining its construction of a statutory
provision governing the ICC's "authority to reopen and reconsider
its prior actions," id. at 277, which is not at issue here, and
did not hold that review for legal error would be unavailable to
a petitioner whose motion to reopen was premised on new
developments, id. at 278-280.
The decision we have been asked to review here reached
the merits of petitioner's claim and announced a legal rule
limiting discretion that we are well-positioned to review. So,
having found jurisdiction over colorable claims of legal error, we
proceed to assess the merits of Thompson's legal argument.
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B. Pardon Waiver Clause
Thompson's position is that "the BIA based [its]
discretionary decision on a misinterpretation of the law."
Thompson received "a full, complete, absolute and unconditional
pardon" for his 2001 conviction from the Connecticut Board of
Pardons and Paroles. Contained in the same subsection of the INA
as the clauses providing for the deportation of an alien who has
been convicted of certain criminal offenses, see 8 U.S.C. § 1227(a)
(2)(A)(i)-(iv), the Pardon Waiver Clause states that those clauses
shall not apply in the case of an alien with respect
to a criminal conviction if the alien subsequent to
the criminal conviction has been granted a full and
unconditional pardon by the President of the United
States or by the Governor of any of the several
States.
Id. § 1227(a)(2)(A)(vi). A pardon waiver has the effect of
automatically canceling removal. Here, the BIA confirmed that
Thompson's "pardon would waive his removability" if it qualified
as a pardon under the Pardon Waiver Clause. But the BIA found
that "even though the [Connecticut] Board of Pardons and Paroles
is the supreme pardoning power in Connecticut, [its] power is not
executively derived, and so it is not effective for purposes of
establishing entitlement to section 237(a)(2)(A)(vi) of the Act[,
the Pardon Waiver Clause]." Thus, Thompson's pardon was
determined to be "legislative [in] nature." Thompson argues,
among other things, that this was a legal error "inconsistent with
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the BIA's settled course of adjudication when interpreting the
Pardon Waiver Clause."
We start by addressing what is meant by the phrase
"settled course of adjudication." If an agency, like the BIA,
announces and follows——by rule or by settled course
of adjudication——a general policy by which its
exercise of discretion will be governed, an irrational
departure from that policy (as opposed to an avowed
alteration of it) could constitute action that must
be overturned as "arbitrary, capricious, [or] an abuse
of discretion" within the meaning of the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996) (alteration in
original) (holding that the INS had not departed from its settled
policy of disregarding entry fraud when it considered eligibility
for a waiver of deportation under 8 U.S.C. § 1251(a)(1)(H)). We
have held that when "an administrative agency decides to depart
significantly from its own precedent, it must confront the issue
squarely and explain why the departure is reasonable," the obvious
goal being to avoid arbitrary agency action. Dávila-Bardales v.
INS, 27 F.3d 1, 5 (1st Cir. 1994) (citing Congreso de Uniones
Indus. de P.R. v. NLRB, 966 F.2d 36, 39 (1st Cir. 1992); Shaw's
Supermarkets, Inc. v. NLRB, 884 F.2d 34, 41 (1st Cir. 1989)). A
"zigzag course is not open to an agency when . . . the agency has
failed to explain why it is changing direction (or even to
acknowledge in the later decision that it is detouring from a
beaten path)." Dávila-Bardales, 27 F.3d at 5 (citing Shaw's
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Supermarkets, Inc., 884 F.2d at 36). Instead, an agency is
expected to "apply the same basic rules to all similarly situated
supplicants." Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996).
Thompson charges the BIA with departing from its settled
course of adjudication when interpreting the Pardon Waiver Clause
as its reasoning in this case is inconsistent with prior BIA
decisions accepting Connecticut pardons, as well as functionally
identical pardons issued by the Georgia Board of Pardons and
Paroles, for purposes of the Pardon Waiver Clause.4 He argues
that the BIA's decision was based on a misunderstanding of its own
caselaw interpreting "legislative pardons," which he agrees are
insufficient under the Pardon Waiver Clause. In reversing course,
Thompson posits, the BIA did not explain why it should matter if
a pardoning board is created by constitution or legislation.
Thompson contends that the BIA, having "constrained its discretion
through a settled course of adjudication" with respect to pardon
4 Participating as amicus curiae, the State of Connecticut
similarly points to the BIA's
long history of properly interpreting and applying
Congress' intent to respect all discretionary and
individualized executive pardons . . . manifested
today in the BIA's respect for the wide variety of
executive pardons granted by states across the country
. . . [so that] the mistaken interpretation at issue
here, which uniquely prejudices the state of
Connecticut and its residents, [is] all the more
anomalous, puzzling, and unjustifiable.
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waivers, acted arbitrarily when it deemed Connecticut pardons
insufficient for purposes of the statute.5
The government counters the "settled course of
adjudication" argument by pointing out that the BIA "has never
addressed in a published decision whether a pardon from a
legislatively derived body constitutes a pardon for purposes of
the pardon waiver" and having "identified only a single,
seventeen-year-old unpublished [BIA] decision" recognizing a
Connecticut pardon, see Murphy, BIA A037 412 467 (2002) (deciding
that a pardon from the Connecticut Board of Pardons and Paroles
sufficed to suspend deportation under the Pardon Waiver Clause
because "[t]he B[IA] ha[d] construed the pardon provision . . . to
apply to the supreme pardoning power"),6 Thompson and Amicus Curiae
5 Thompson's argument regarding the settled course of adjudication
is wholly distinguishable from the one rejected in Tamenut, where
the Eighth Circuit found that the BIA's "acknowledge[ment of] the
existence of its authority to reopen sua sponte in what it deems
to be 'exceptional situations' is not sufficient to establish a
meaningful standard for judging whether the BIA is required to
reopen proceedings on its own motion." 521 F.3d at 1005 (citing
Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003)).
See also Sang Goo Park v. Att'y Gen. of U.S., 846 F.3d 645, 655
(3d Cir. 2017) (confirming that a BIA denial premised on a lack of
exceptional circumstances does not automatically confer
jurisdiction for appellate review). Rather, Thompson challenges
the BIA's legal conclusion that "he is [not] entitled to a pardon
waiver," given the BIA's own interpretation of the Pardon Waiver
Clause.
6 Relying on Matter of Nolan, 19 I. & N. Dec. 539, 541-42 (B.I.A.
1988), and Matter of Tajer, 15 I. & N. Dec. 125, 126 (B.I.A. 1974)
-- two cases also cited by the BIA in Thompson's case -- the BIA
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American Immigration Council fail to persuade that the BIA has set
out a contrary policy than the one followed by the BIA here. We
disagree.
First, undermining the government's suggestion that the
BIA's decision to accept a Connecticut pardon in Murphy was a
historical anomaly, the BIA decided Walton, BIA A041 657 485
(2019), shortly after this case was argued before us. In an
unpublished decision, the BIA found "the respondent's pardon by
the Connecticut Board of Pardons and Paroles [to] ha[ve] the effect
of an executive pardon."7 The BIA deemed the circumstances in
Walton, which are almost identical to those presented here, to be
the sort warranting the BIA's exercise of its sua sponte authority.
In that case, the respondent had been found removable in 2012 under
sections 237(a)(2)(A)(ii) and (iii) of the INA, 8 U.S.C. § 1227(a)
(2)(A)(ii) and (iii), following two convictions in Connecticut
state court. On January 14, 2019, the Connecticut Board of Pardons
and Paroles granted the respondent a full and unconditional pardon
for her prior offenses, and subsequently, the BIA, by way of its
sua sponte authority, reopened and terminated her immigration
in Murphy reached the opposite conclusion as it did here.
7 The BIA denied DHS's request for reconsideration of its decision
on May 12, 2020, affirming that a Connecticut pardon "should be
credited as an executive pardon."
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proceedings. Acknowledging some deference to the Connecticut
Attorney General's view of its own state laws, the BIA in Walton
credited the state's explanation that the respondent's pardon
should be viewed as an "executive pardon" under Connecticut state
law. The BIA recognized the colonial origin of Connecticut's
pardoning power, which was "originally executive in nature," and
found that since the Governor appoints the Board, see Conn. Gen.
Stat. § 54-124a(a)(1), the "executive aspect" of Connecticut
pardons was "retained."8
In response to this recent, on-point decision, the
government, otherwise conceding the similarity between Thompson
and the petitioner in Walton, argues that Walton is unpublished
and non-precedential. Furthermore, it asserts that "the existence
of a 'settled course' [of adjudication] cannot be lightly
inferred," citing Menéndez-González v. Barr, 929 F.3d 1113, 1118
(9th Cir. 2019), so Walton does not materially alter things for
Thompson. In Menéndez-González, the Ninth Circuit found it lacked
8 In Connecticut, the power to pardon resides with the
sovereign -- once the monarch and now the people. See S. Rep. No.
98-R-0255 (Conn. 1998). Although the citizens of Connecticut did
not assign the pardon power in their constitution, Connecticut's
legislature, the General Assembly, retained this power, which had
been formerly enshrined in Connecticut's colonial charter. See id.
Subsequently, in 1883, the General Assembly transferred this power
to the Board of Pardons and Parole. See id.; Palka v. Walker, 198
A. 265, 266 (Conn. 1938).
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jurisdiction to review the denial of a motion to reopen when the
petitioner, claiming that the BIA had departed from its settled
course of adjudication, failed to present a colorable legal or
constitutional question for review. Id. at 1119. There, the
petitioner argued that the BIA often granted motions to reopen sua
sponte after the vacatur of the alien's conviction, thereby
"eliminating the discretion that the BIA would otherwise have to
examine the specifics of an individual petitioner's case," and
petitioner was, therefore, entitled to the reopening of his
immigration proceedings sua sponte. Id. at 1118. The Ninth
Circuit clarified that, by citing a handful of unpublished
decisions, petitioner had failed to allege a pattern by which the
BIA constrained its authority to require it to reopen his case.
Id. at 1118-19. We have no trouble distinguishing
Menéndez-González from the case before us.
Thompson, relying on several published and unpublished
BIA decisions for support, argues that the BIA's choice here to
find that a Connecticut pardon does not qualify under the Pardon
Waiver Clause was arbitrary and a departure from the BIA's settled
course, not that the BIA is necessarily required to reopen his
case sua sponte. We agree with the government that two unpublished
BIA decisions do not necessarily evidence a BIA policy that
Connecticut pardons are sufficient for purposes of the Pardon
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Waiver Clause, although we also point out that "we see no earthly
reason why the mere fact of nonpublication should permit an agency
to take a view of the law in one case that is flatly contrary to
the view it set out in earlier (yet contemporary) cases."
Dávila-Bardales, 27 F.3d at 5-6; see also id. at 5 ("[T]he prospect
of a government agency treating virtually identical legal issues
differently in different cases, without any semblance of a
plausible explanation, raises . . . concerns about arbitrary agency
action . . . ."). Nevertheless, as Thompson clearly argues, the
BIA's practice of accepting pardons from the supreme pardoning
authority in a given state, even if that authority is conferred by
statute, transcends these two cases. Cf. Sang Goo Park v. Att'y
Gen. of U.S., 846 F.3d 645, 654 (3d Cir. 2017) ("[O]ne favorable
exercise of discretion does not a settled course make.").
Thompson argues, and we agree, that the BIA has
repeatedly found that the relevant distinction between
"legislative pardons" and "executive pardons" is based on the
nature of the pardon and whether the pardon is conferred
automatically, not whether the source of the pardon authority is
found in statute or the state's constitution. Turning to BIA
precedent, it is not difficult to trace the BIA's course of
adjudication on this issue. It is well-settled BIA policy that
to qualify for a pardon waiver, a full and unconditional pardon
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given to an alien "must be of an executive rather than a
legislative nature." 101 A.L.R. Fed. 668 (1991). In 1952,
Congress modified the Pardon Waiver Clause to make this
distinction.9 In Matter of R--, the BIA addressed the change in
law and found that "Congress ha[d] manifested an express intention
to grant exemption from deportation only to those aliens who have
obtained an executive pardon." 5 I. & N. Dec. 612, 619 (B.I.A.
1954). It concluded that respondent's legislative pardon, obtained
automatically after he completed the punishment for the crime he
was convicted of, did not qualify under the Pardon Waiver Clause.
Id. (citing S. Rep. No. 81-1515, at 637 (1950) (defining
legislative pardons as "pardons under which an alien is pardoned
by operation of law in several States after completion of his
sentence.")). A few years later in Matter of G--, the BIA further
elucidated its view of the change to the Pardon Waiver Clause,
stating "that Congressional rejection of the legislative pardon
was based on its automatic application to one who had served his
sentence irrespective of the merits of the case." 9 I. & N.
Dec. 159, 162 n.1 (B.I.A. 1960). To the extent the BIA defined
the term executive pardon, it did so by way of its rejection of
9 The Pardon Waiver Clause in effect today, 8 U.S.C. § 1227(a)
(2)(A)(vi), remains substantively the same as the former Section
241(b)(1) of the INA of 1952, 8 U.S.C. § 1251(b)(1).
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automatic pardons issued by operation of law. Rejection of this
so-called legislative pardon did not depend on whether it was
conferred by statute or constitution. Compare Matter of R--, 5
I. & N. Dec. at 618-19 (determining that Pennsylvania's pardon
statute, which pardons all who endure the punishment imposed for
a class of crimes, was a "legislative pardon"), with Matter of
Nolan, 19 I. & N. Dec. 539, 544 (1988) (determining that "although
provided for under a state constitution rather than by statute,
[the automatic pardon] is akin to the legislative pardon which
Congress clearly rejected" (emphasis added)).
Furthermore, in Matter of Nolan, the BIA "recognized the
fact that in some instances, the supreme pardoning power may rest
with an executive or executive body other than the President of
the United States or the Governor of a state." 19 I. & N. Dec.
at 542 (citing Matter of Tajer, 15 I. & N. Dec. 125, 126 (B.I.A.
1974); Matter of K--, 9 I. & N. Dec. 336 (B.I.A. 1961); Matter of
C-R-, 8 I. & N. Dec. 59 (B.I.A. 1958); Matter of D--, 7 I. & N.
Dec. 476 (B.I.A. 1957); Matter of T--, 6 I. & N. Dec. 214 (B.I.A.
1954)). The BIA cited Matter of Nolan, as well as the long list
of precedent it relies on, with approval in its decision in
Thompson's case. Yet, taken collectively, these cases exemplify
a BIA policy contrary to the one announced in its decision below,
i.e., that a pardon issued by the supreme pardoning authority in
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the state of Connecticut is not effective because the source of
that authority is a statute. Matter of T--, 6 I. & N. Dec. 214,
serves as an example. There, the BIA accepted a full and
unconditional pardon by the Governor of Hawaii, despite that
authority being statutorily derived. Id. at 215-16. That "[t]he
pardoning power of the Governor of Hawaii stem[med] from . . .
statutory sources" did not render the pardon legislative. Id. at
215.
As Thompson points out, both Matter of D--, 7 I. & N.
Dec. 476, and Matter of Tajer, 15 I. & N. Dec. 125, deal with
pardons from the Georgia State Board of Pardons and Paroles, which
are substantively identical to a Connecticut pardon. In Matter
of D--, the BIA determined that "an executive pardon duly granted
by [the] supreme authority" in the state of Georgia, the Georgia
State Board of Pardons and Paroles, satisfied the Pardon Waiver
Clause "limiting the grant of a pardon to the President of the
United States or the Governor of a State." 7 I. & N. Dec. at 477.
The BIA found "it was not the intent of Congress to fail to
recognize any executive pardon granted by a State which has a
constitutional provision for executive pardons to be issued by
other than the Governor of the State." Id. The BIA affirmed its
acceptance of pardons issued by the Georgia State Board of Pardons
and Paroles in Matter of Tajer, explaining that "[t]he pardon . . .
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under consideration is the only unconditional executive pardon
that can be obtained in the state of Georgia" and reiterating that
the purpose of the Pardon Waiver Clause was "to eliminate the
effectiveness of a legislative pardon" for the purposes of the
statute. 15 I. & N. Dec. at 126 (emphasis added). While the
government would have us read the phrase referring to a
"constitutional provision for executive pardons" as a BIA
requirement that the state's supreme pardoning authority be
conferred by constitution, such a requirement would conflict with
Matter of T--, 6 I. & N. Dec. at 215, as well as Matter of C-R-,
8 I. & N. Dec. at 63 (accepting a pardon issued pursuant to a
Nebraska statute granting the mayor pardon authority for local
violations), and Matter of K--, 9 I. & N. Dec. at 339 (accepting
a pardon from the United States High Commissioner for Germany,
notwithstanding that the pardoning power was derived from an
executive order). Therefore, we refuse to read it as the
government proposes.10
10 The government also suggests that the statute is unambiguous
and applies only to presidential and gubernatorial pardons, all
the while still pressing that the relevant attribute disqualifying
Connecticut pardons is that the pardon authority is legislatively
conferred. The government does not seem to be suggesting that we
abrogate the BIA's policy of accepting "executive pardons." As
we limit our holding to correcting the BIA's unacknowledged and
seemingly arbitrary departure from its settled course of
adjudication, we avoid reaching the proper interpretation of the
Pardon Waiver Clause directly, noting that this circuit has not
addressed the appropriate degree of deference afforded to an
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Instead, we agree with Thompson (and the BIA in Walton)
that Connecticut pardons and Georgia pardons are substantively
identical, notwithstanding that Georgia's pardoning power is
conferred by constitution. Both Boards of Pardons and Paroles
enjoy complete discretion to issue full and unconditional pardons
through a deliberative process. See Conn. Gen. Stat. § 54-124a
and Georgia Const. Art. IV, Sec. 2, para. 2; see also McLaughlin
v. Bronson, 537 A.2d 1004, 1007 (Conn. 1988) (describing the
Connecticut "board['s] unfettered discretion in making its pardon
and commutation decisions" (citing Bd. of Pardons v. Dumschat, 452
U.S. 458, 466 (1981))). Like in Georgia, the Governor of
Connecticut appoints the board members, who are confirmed by the
legislature. See Conn. Gen. Stat. § 54-124a. The State of
Connecticut maintains (and the BIA accepted in Walton) that the
Connecticut Board is an executive agency, and that under
Connecticut law, someone who has received a full and unconditional
pardon has not been convicted of any crime. Thus, when the Board
exercised its discretion to grant Thompson a "full, complete,
absolute and unconditional pardon," his conviction and arrest were
erased, according to Connecticut law. See Conn. Gen. Stat.
unpublished BIA decision, like the one before us, see Vásquez v.
Holder, 635 F.3d 563, 567 n.6 (1st Cir. 2011) (citing De León–
Ochoa v. Att'y Gen. of U.S., 622 F.3d 341, 349–51 (3d Cir. 2010)).
-29-
§ 54-142a(e)(3). According to the BIA's precedent, that would
qualify for relief under the Pardon Waiver Clause.
In fact, contrary to the government's suggestion that
the BIA's decision here was not a break with its past published
precedent, the BIA as early as 1958 declared in a published opinion
that "[t]hat portion of section 241(b) of the Immigration and
Nationality Act limiting the grant of an effective pardon to the
President of the United States or the governor of a state has been
interpreted to include a pardon granted by a state which has
statutory provision for executive pardons to be issued by other
than the governor of the state." Matter of C-R-, 8 I. & N. Dec.
at 61-62. In that case, the BIA found that "the unconditional
pardon granted the respondent under the legislation provision" at
issue -- a statute enabling mayors of certain cities to pardon
individuals convicted of municipal offenses -- "is an effective
pardon" for the purpose of the Pardon Waiver Clause. Id. at 63.
It did so in part because, notwithstanding the fact that the mayor
was not a governor or the president and the fact that his authority
was derived from legislation, he was nevertheless "the supreme
pardoning authority in the case of a conviction under a city
ordinance of his municipality," as his pardoning authority in this
respect was not coextensive with that of any other official. Id.
As amicus Connecticut points out, the same is true of the
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Connecticut Board of Pardons and Paroles here. See Conn. Gen.
Stat. § 54-130a; McLaughlin, 537 A.2d at 1006-07 ("In Connecticut,
the pardoning power is vested in the legislature[,] which has
delegated its exercise to the board of pardons." (internal citation
omitted)).
The BIA has effectively constrained its discretion as to
what suffices under the Pardon Waiver Clause. Even absent the
about-face in Walton, we are persuaded that the BIA departed from
its settled course of accepting full and unconditional pardons
granted by a state's supreme pardoning authority when the pardon
is executive, rather than legislative, in nature. The BIA's
policy has been shaped by its prior decisions accepting pardons
from authorities whose powers were conferred by statute and
rejecting pardons that were not deliberative, even when
constitutionally guaranteed. From these BIA decisions, it is
evident that "executive in nature" does not require the power to
pardon be presently inscribed in a state's constitution. As the
BIA premised its denial of Thompson's motion to reopen on the
insufficiency of a Connecticut pardon for purposes of the Pardon
Waiver Clause, we remand to the BIA to determine whether to reopen
Thompson's immigration proceedings sua sponte against the correct
legal background.11
11 The administrative record reflects that Thompson submitted the
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III.
Convinced that we have jurisdiction to review colorable
legal and constitutional challenges to denials of motions to reopen
sua sponte, we conclude that the BIA departed from its settled
course of adjudication by deeming a pardon from the state of
minutes of his pardon waiver hearing with his motion to reopen and
the original copy of his pardon certificate a few days later. We
note that the BIA, nevertheless, found that "[w]ithout a certified
photocopy, [Thompson had] not met his heavy burden of showing that
his case should be reopened." On appeal, Thompson argues that the
BIA's decision on this issue constituted legal error: he provided
the BIA with an original copy; there was no requirement that he
provide the BIA with a certified copy instead; and in fact, the
authorities cited by the BIA purportedly in support of the
proposition that certified copies are required do not indicate any
such requirement. See 8 C.F.R. § 1003.2; INS v. Abudu, 485 U.S.
94 (1988); Matter of Coelho, 20 I. & N. Dec. 464 (B.I.A. 1992).
Rather, Thompson posits (and we agree), these cases cited by the
BIA deal with the heavy substantive burden that the petitioner
must meet for reopening. In its response, the government ignores
this nonfrivolous legal-error argument and offers nothing in
defense of, or that might elucidate, the BIA's statement on this
point. Thus, it is apparent to us that the government is not
advancing this as a basis for denial, and we therefore need not
address it and deem it waived. See W. Va. Coal Workers'
Pneumoconiosis Fund v. Bell, 781 F. App'x 214, 226 (4th Cir. 2019)
(Richardson, J., writing separately and announcing the judgment)
("[A]n appellee's wholesale failure to respond to a conspicuous,
nonfrivolous argument in the appellant's brief ordinarily
constitutes a forfeiture."); Alvarez v. Lynch, 828 F.3d 288, 295
(4th Cir. 2016); Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d
742, 747 (7th Cir. 2001). Judge Barron dissents solely as to this
issue. In his view, the BIA's ruling as to the requirement to
provide a certified photocopy must be vacated and remanded for
consideration of Thompson's unchallenged argument that the
requirement was impermissible because it deviated from settled
agency practice, but the BIA should be permitted on remand to
consider whether that requirement either accorded with that past
practice or was otherwise justified.
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Connecticut insufficient under the Pardon Waiver Clause, and we
remand for further proceedings consistent with this opinion.
As a final matter, we address the Petitioner's Emergency
Motion for Bail. Thompson articulates the risk that he faces
while currently detained given the present pandemic and emphasizes
the considerable length of time he has spent at the Etowah County
Detention Center in Gadsden, Alabama -- the last stretch occurring
during the pendency of this appeal.
First, we find that the issue of bail pending appeal is
moot. See Pet'r's Emergency Mot. for Bail 3 ("Thompson asks this
Court to exercise its inherent authority to admit petitioners to
bail pending resolution of an appeal to order his immediate release
from immigration custody." (citation omitted)).
Therefore, we construe Thompson's emergency motion for
bail as a petition for a writ of habeas corpus and transfer it to
the Northern District of Alabama, the district where Thompson
remains confined.12 See 28 U.S.C. § 2241(b); Rumsfeld v. Padilla,
542 U.S. 426, 443 (2004) ("The plain language of the habeas statute
. . . confirms the general rule that for core habeas petitions
12 In January 2019, Thompson filed a petition for writ of habeas
corpus challenging his immigration detention in the Northern
District of Alabama, which the district court dismissed without
prejudice on September 30, 2019. See Thompson v. Horton, No.
4:19-cv-00120, 2019 WL 4750072 (N.D. Ala. Sept. 20, 2019).
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challenging present physical confinement, jurisdiction lies in
only one district: the district of confinement."); López-Marroquín
v. Barr, 955 F.3d 759 (9th Cir. 2020). We note that the pressing
Covid-19-related concerns that Thompson's motion raises are
distinct from those previously presented to the district court in
his prior habeas petition so that our transfer does not duplicate
litigation currently pending before the Eleventh Circuit.
Vacated and Remanded.
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