Olusegun Olatunji v. Jefferson Sessions III ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 18, 2018*
Decided May 22, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17-2895 Petition for Review of an
Order of the Board of
OLUSEGUN OLATUNJI,
Immigration Appeals.
Petitioner,
No. A200-881-528
v.
JEFFERSON B. SESSIONS III, Attorney General
of the United States,
Respondent.
Order
In 2015 an Immigration Judge ordered Olusegun Olatunji removed to his
native Nigeria. In 2016 the Board of Immigration Appeals dismissed his appeal,
and Olatunji did not file a petition for judicial review. Instead he asked the Board
*This successive appeal has been submitted to the original panel under Operating Procedure 6(b).
Circuit Judge Scudder was drawn to replace Circuit Judge Williams, who has retired. We have
concluded that oral argument would not aid the court. See Fed. R. App. P. 34(a)(2)(C).
No. 17-2895 Page 2
to reconsider its decision and reopen the case to consider information that he
submitted after the Board’s initial decision. The Board denied those requests, and
we denied his petition for review. Olatunji v. Sessions, No. 16-3106 (7th Cir.
Feb. 13, 2017) (nonprecedential disposition).
Olatunji then filed a second motion for reopening and reconsideration. The
Board denied that motion as both untimely and barred by the rule that only one
such motion is proper. See 8 U.S.C. §1229a(c)(6), (7). Olatunji again petitions for
judicial review. He asks us to review the Board’s initial decision (from 2016)
rather than its order denying his second request for reconsideration and
reopening. We have no authority to do that. Petitions for judicial review must be
filed within 30 days of the administrative decision being challenged. 8 U.S.C.
§1252(b)(1). Whether or not that time limit is “jurisdictional” under the Supreme
Court’s current jurisprudence, it is at least a mandatory claim-processing rule.
See Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017). The
Attorney General has invoked the benefit of the 30-day limit, so the only
administrative decision we can consider is the one entered on August 10, 2017,
denying Olatunji’s second motion.
Yet Olatunji does not contest the Board’s conclusion that his motion was
both untimely and successive. Instead he maintains that the Board should have
reopened his case sua sponte—in other words, should have exercised discretion to
disregard the time-and-number limits on aliens’ post-decision motions. That
contention encounters a genuinely jurisdictional rule: whether to reopen a
decision sua sponte is committed to agency discretion by law, see Anaya-Aguilar v.
Holder, 683 F.3d 369, 372–73 (7th Cir. 2012), and 8 U.S.C. §1252(a)(2)(B) provides
that “no court shall have jurisdiction to review” any decision that the statute
commits to the discretion of the Attorney General. (There are some exceptions,
none of which applies to sua sponte reopening.) Reyes Mata v. Lynch, 135 S. Ct.
2150 (2015), holds that a decision whether to dismiss a petition as untimely is not
discretionary for this purpose and thus may be reviewed; but whether to
reopen sua sponte is wholly discretionary. We lack authority to review it.
The petition for review is dismissed for lack of jurisdiction.