Thompson v. Barr ( 2020 )


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  •           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
    -3-
    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
    -4-
    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.
    -5-
    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
    -6-
    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
    -8-
    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
    -9-
    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
    -10-
    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
    .
    -11-
    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
    -12-
    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
    -13-
    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
    .
    -14-
    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).
    -15-
    "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.
    -16-
    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
    -17-
    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
    -18-
    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.
    -19-
    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
    -20-
    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."
    -21-
    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).
    -22-
    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
    -23-
    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
    -24-
    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).
    -25-
    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
    -26-
    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 . . .
    -27-
    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
    -28-
    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
    -30-
    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
    -31-
    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.
    -32-
    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).
    -33-
    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.
    -34-