Pilch, Zofia v. Ashcroft, John ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-4253, 02-2733 & 02-3779
STANISLAW PILCH and ZOFIA PILCH,
Petitioners,
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals
____________
ARGUED DECEMBER 11, 2003—DECIDED DECEMBER 30, 2003
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge. Stanislaw and Zofia Pilch
and their three children would prefer to remain in the
United States rather than return to Poland, of which the
parents are citizens. (The children, born in the United
States during their parents’ unauthorized presence, are
citizens of this nation.) The parents sought discretionary
relief from removal, contending that return to Poland would
create extreme economic hardship. See 8 U.S.C. §1254(a).
In 1995 an immigration judge denied their application, in
1996 the Board of Immigration Appeals affirmed, and in
1997 we dismissed their petition for review, holding that
2 Nos. 01-4253, 02-2733 & 02-3779
federal courts lack jurisdiction to review the denial of
discretionary relief based on claims of economic hardship.
Pilch v. INS, 129 F.3d 969 (7th Cir. 1997). More than six
years later, the Pilch family is still in the United States,
rehashing arguments that both the agency and this court
have rejected.
Even before we dismissed their petition, the Pilches asked
the Board to reconsider its decision. This motion com-
plained that the Board had misstated the children’s ages
and should have discussed the bearing of Salameda v. INS,
70 F.3d 447 (7th Cir. 1995). It was accompanied by a social
worker’s opinion that relocation to Poland would be harmful
to the children, who are “totally American”. While this was
pending—and again before our 1997 decision—the Pilches
filed a motion to reopen based on the fact that Zofia Pilch’s
employer had sponsored her application for a visa; both
Pilches sought adjustment of status to permanent residence
based on this application. Then in 1999 the Pilches filed a
second motion to reopen, this time based on Section 203 of
the Nicaraguan Adjustment and Central American Relief
Act of 1997, Pub. L. 105-100, 111 Stat. 2160, which despite
its name provides benefits to aliens from Eastern Europe as
well as those from this hemisphere. (The benefit the Pilches
sought is discretionary adjustment of status, an option
afforded by 8 U.S.C. §1255 and extended to additional al-
iens by the 1997 statute.) In December 2001 the Board
denied all three pending requests, holding in reliance on
Matter of Shaar, 21 I.&N. Dec. 541 (BIA 1996), that, as un-
successful applicants for discretionary relief who failed to
depart as ordered, the Pilches are not eligible for any of the
post-decision remedies sought by their motions. The parents
filed a petition for judicial review of that decision; it has
been docketed as No. 01-4253.
Before we could rule on that petition, the Pilches
made still more requests of the Board. Although only one
Nos. 01-4253, 02-2733 & 02-3779 3
motion to reopen is permitted, see 8 U.S.C. §1229a(b) (6)(A);
8 C.F.R. §1003.2(c)(2), the Pilches (who had filed two
already) then filed two more. In an attempt at disguise,
counsel captioned each as a motion asking the Board to act
sua sponte—but, of course, if reopening were to occur in
response to a motion, it could not have been sua sponte. See
Calderon v. Thompson, 523 U.S. 538, 553-54 (1998). These
applications were dismissed—implying that the Board did
not treat them as invitations to reflect on the appropriate-
ness of sua sponte action—and the Pilches filed two more
petitions for review, which we docketed as Nos. 02-2733 and
02-3779. These petitions are summarily dismissed. The
statute does not allow aliens to file successive motions to
reopen, and adding the words “sua sponte” to a successive
motion does not change its character. There was nothing
properly before the Board, and hence there is nothing for us
to review. At all events, failure to reopen sua sponte is a
discretionary decision that is unreviewable for much the
same statutory reason we dismissed the petition in 1997.
See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.
2003) (collecting authority).
According to the Pilches, we should overrule our 1997
decision and at last review their claim on the merits.
Doubtless we have the authority to do this; the law of the
case does not deprive a court of the power to act, if firmly
convinced (usually on the basis of intervening develop-
ments) that an error has been made. See Christianson v.
Colt Industries Operating Corp., 486 U.S. 800 (1988). But
we do not perceive any error. Section 309(c)(4)(E) of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA)—a transitional provision that applies
to the Pilches because their deportation proceedings began
before the law’s enactment but the BIA’s decision was
rendered more than 30 days after the IIRIRA became ef-
fective—provides that “there shall be no appeal of any dis-
cretionary decision under section . . . 244 or 245 [8 U.S.C.
4 Nos. 01-4253, 02-2733 & 02-3779
§§ 1254, 1255] . . . of the Immigration and Nationality Act
(as in effect as of the date of the enactment of this Act).”
The Pilches’ principal claim rests on §244 of the Act, and
the administrative decision not to treat the consequences of
removal to Poland as “extreme economic hardship” is
discretionary. Their more recent claim for adjustment of
status rests on §245. Both are discretionary actions covered
by §309(c)(4)(E). As we held in 1997, that is all there is to
the matter. The only other circuit that has considered this
issue for transitional cases has agreed with Pilch. See, e.g.,
Rodriguez v. Ashcroft, 253 F.3d 797, 799 (5th Cir. 2001).
No alien has a constitutional entitlement to judicial re-
view of discretionary administrative decisions of this sort.
See Yang v. INS, 109 F.3d 1185, 1194-97 (7th Cir. 1997).
Sometimes the legislature provides for review. Section
309(c)(4)(E) does not, for example, affect judicial review of
claims for asylum or those under the Convention Against
Torture. Cf. Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002)
(granting a stay in a proceeding in which an alien parent
contended that a U.S. citizen child might be subject to tor-
ture if the child accompanied the parent on removal to
Nigeria). The Pilches did not seek any of the remedies for
which judicial review is available; they do not contend that
they or their children would be persecuted or tortured in
Poland. All we have is a standard request for relief on
economic grounds. Judicial review has been curtailed to
expedite the process—which the Pilches have managed to
distend notwithstanding the statute. (Had the family left in
1995 as the immigration judge directed, or even in 1997
when we dismissed the petition, the children, born in 1988,
1990, and 1991, would have found the transition to life in
Poland much easier.)
Counsel for the Pilches insists that, if the BIA makes a
factual error (such as misstating the children’s ages), or
a legal one (such as relying on Shaar, which the Pilches
Nos. 01-4253, 02-2733 & 02-3779 5
deem incorrectly decided), then we may review that er-
ror—for summarizing the facts and law correctly is not
“discretionary.” That’s just an invitation to sidestep the
IIRIRA. The thing under review is the agency’s final de-
cision, not the language of its opinion; and if the decision is
to withhold certain discretionary remedies, that’s the end.
Otherwise there would be no jurisdiction if the agency is
right, but jurisdiction when it errs; that would be a back
door assertion of jurisdiction to review every decision, and
an effective nullification of the statute. Judicial authority
depends on power granted by law. It cannot be assumed but
must be established. Section 309(c)(4)(E) shows that we lack
jurisdiction, whether or not the agency made a factual or
legal error on the way to decision. Once again, therefore,
the Pilches’ petition for review is
DISMISSED FOR WANT OF JURISDICTION.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-30-03