Henrikas Malukas v. William Barr ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1633
HENRIKAS MALUKAS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A72-569-248
____________________
ARGUED SEPTEMBER 23, 2019 — DECIDED OCTOBER 15, 2019
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Henrikas Malukas, a citizen
of Lithuania, entered the United States in 1992 on a tourist
visa and did not leave when it expired. In 1995 he was con-
victed of several weapons-related felonies and sentenced to
52 months in prison. While he was imprisoned, immigration
officials began removal proceedings. Malukas applied for
discretionary relief as the spouse of a U.S. citizen, but the
2 No. 19-1633
immigration judge (and later the Board of Immigration Ap-
peals) concluded that his criminal conduct outweighed
whatever equities his family and financial ties to the United
States supplied.
The Board’s final order was entered in July 2003, and Ma-
lukas did not seek judicial review. He did file a timely mo-
tion for reconsideration, arguing that his criminal conduct
should not have been deemed such a high obstacle to relief.
The Board denied that motion in September 2003, and again
Malukas did not seek judicial review.
Malukas remained in the United States, in part because
he had allowed his Lithuanian passport to expire and Lithu-
ania would not issue new travel documents. In 2018 Malu-
kas filed with the Board a second motion to reconsider, and
an initial motion to reopen, contending that the removal or-
der is invalid because the proceeding began with a “Notice
to Appear” that did not include a date and time for the hear-
ing. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). The date
and time were furnished in a later document, and Malukas
did not argue at his removal hearing that he lacked adequate
notice. Still, he maintained, the defect on the original Notice
to Appear deprived the immigration judge of jurisdiction
and vitiated the removal order. The motion also contended
that he had been rehabilitated by the passage of time, so that
the equities now weighed in his favor, and that Lithuania’s
failure to accept his return also justifies discretionary relief.
The Board denied this motion as time-and-number barred.
(Only one motion to reconsider is allowed, and the time limit
for a motion to reopen is 90 days. 8 U.S.C. §1229a(c)(6)(A),
(c)(7)(C)(i); 8 C.F.R. §1003.2(b)(2), (c)(2).) The Board added
No. 19-1633 3
that a defect in a Notice to Appear does not affect jurisdic-
tion.
That aspect of the Board’s ruling has since been con-
firmed by this court. Ortiz-Santiago v. Barr, 924 F.3d 956 (7th
Cir. 2019). The BIA’s reasoning differs from that of Ortiz-
Santiago, but the bokom line is the same. This means that the
Board did not commit a legal error that would permit judi-
cial review despite the fact that the motion to reopen is 15
years late and that the second motion to reconsider is not on-
ly untimely but also independently barred as successive.
Seeking to avoid the time-and-number problem, Malukas
asked the Board to reopen sua sponte—that is to say, on its
own volition. The time-and-number limits apply to aliens’
motions and do not restrict the Board’s (or the Akorney
General’s) authority to act independently of a motion. But
the request that Malukas made—a motion to reopen sua
sponte—is an oxymoron. Reopening in response to a motion
is not sua sponte; it is a response to the motion and thus sub-
ject to the time-and-number limits.
The Board’s time-and-number limits have a parallel in
the federal law of collateral review. Only one motion for re-
view is permiked, unless the conditions for second or suc-
cessive motions have been satisfied. 28 U.S.C. §§ 2244,
2255(h). And if a court of appeals decides that those condi-
tions have not been satisfied, the disappointed applicant
may not seek rehearing. 28 U.S.C. §2244(b)(3)(E). Prisoners
have tried several ways to get around those limits. One is to
characterize a successive petition as a motion for relief under
Fed. R. Civ. P. 60(b) from the adverse decision. The Justices
held, however, that when such a motion rests on substantive
arguments it counts as a forbidden successive petition. Gon-
4 No. 19-1633
zalez v. Crosby, 545 U.S. 524 (2005). Another approach has
been to ask the court of appeals to recall its mandate rather
than to grant rehearing. The Justices stated that such a mo-
tion should be treated the same as a petition for rehearing,
see Calderon v. Thompson, 523 U.S. 538, 554 (1998), though
they added that if the court of appeals says that it would
have recalled its mandate whether or not the prisoner sought
relief, they will take the judges at their word.
By the standards of Gonzalez and Calderon, the document
that Malukas filed with the Board is a motion for reopening
or reconsideration, properly denied on time-and-number
grounds. The arguments that Malukas has rehabilitated
himself, and that Lithuania’s decision not to accept his re-
turn affects the weighing of equities, are substantive. The
Board stated its reasons for not reopening or reconsidering
on the merits, thus satisfying Iglesias v. Mukasey, 540 F.3d 528
(7th Cir. 2008). And the Board did not hint that it would
have reopened in the absence of a motion; to the contrary, it
denied the motion actually made, remarking:
While the respondent alternately requests that the Board exercise
our discretionary authority to reopen proceedings sua sponte,
that authority is reserved for rare, “exceptional” situations not
demonstrated here. 8 C.F.R. §1003.2(a); MaDer of J-J-, 21 I&N Dec.
976 (BIA 1997); MaDer of G-D-, 22 I&N Dec. 1132 (BIA 1999).
Thus, we will deny the respondent’s motion.
Gonzalez and Calderon require us to reject Malukas’s position
that adding the phrase “sua sponte” to an untimely or num-
ber-barred motion makes those limits go away and opens the
Board’s decision to plenary judicial review. Instead we reit-
erate the conclusion of Anaya-Aguilar v. Holder, 683 F.3d 369,
371–73 (7th Cir. 2012) that, because the Board has unfekered
discretion to reopen, or not, sua sponte, its decision is not
No. 19-1633 5
subject to judicial review at all. See 8 U.S.C. §1252(a)(2)(B).
See also Heckler v. Chaney, 470 U.S. 821 (1985) (no judicial re-
view when decision has been commiked to agency discre-
tion by law).
This is equally true if we deem a “motion to reopen sua
sponte” as equivalent to a request for mercy notwithstanding
all legal obstacles. Dealing with such a request is within the
Board’s discretion, and no rules of law apply to the provi-
sion or withholding of administrative grace. Nor does the
holding of Iglesias that the Board must give reasons for deny-
ing a genuine motion to reopen affect decisions, pro or con,
about sua sponte relief; Iglesias concerned a timely initial mo-
tion to reopen, not an administrative decision to refrain from
sua sponte action.
One panel of this court recently held that, although
§1252(a)(2)(B) and Anaya-Aguilar render the merits of the
Board’s decisions unreviewable, a court still can decide
whether the Board has misunderstood the basis of the alien’s
request. Fuller v. Whitaker, 914 F.3d 514, 519–20 (7th Cir.
2019). That decision conflicts with rulings in some other cir-
cuits. See, e.g., Butka v. ADorney General, 827 F.3d 1278, 1285–
86 (11th Cir. 2016); Rais v. Holder, 768 F.3d 453 (6th Cir. 2014).
It is also hard to reconcile with the fact that this court rou-
tinely denies, without explanation, petitions for rehearing
and motions to recall the mandate—and we never explain
why we have not recalled a mandate sua sponte. What rule of
law requires the Board of Immigration Appeals to say more
than “denied” in response to a motion about a subject over
which it possesses unbridled discretion? Why would an ex-
planation, when given, permit judicial review of a subject
commiked to agency discretion? The federal agency ex-
6 No. 19-1633
plained its action in Chaney, but the Court still held the deci-
sion not reviewable.
The Supreme Court may cast light on that question and
related subjects in Guerrero-Lasprilla v. Barr, No. 18–776 (cert.
granted June 24, 2019) (to be argued Dec. 9, 2019), and De-
partment of Homeland Security v. University of California, No.
18–587 (cert. granted June 28, 2019) (to be argued Nov. 12,
2019). Guerrero-Lasprilla poses the question whether a court
of appeals may review the Board’s decision not to exercise
equitable tolling to excuse an untimely motion for reconsid-
eration or reopening, while University of California poses the
question whether courts may set aside a discretionary prose-
cutorial decision about immigration status on the ground
that a legal error may have influenced the exercise of that
discretion. Today’s case does not present any occasion to de-
termine how far this court will take Fuller. The Board ex-
plained why it declined to reopen sua sponte, and that expla-
nation does not contain or imply any legal error. Judicial re-
view accordingly is unavailable. Diplomats rather than
judges must determine whether Malukas can be removed to
Lithuania—and it is a maker of prosecutorial discretion
whether the United States should continue to seek his re-
moval in light of the events since 2003.
To the extent that the Board denied the motion to recon-
sider and reopen its decision of 2003, the petition for review
is denied. To the extent that the Board declined to reopen the
proceedings sua sponte, the petition for review is dismissed
for want of jurisdiction.