Julio Carrasco-Palos v. Jefferson B. Sessions, III , 695 F. App'x 992 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4041
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Julio Carrasco-Palos
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 5, 2017
Filed: June 22, 2017
[Unpublished]
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Before WOLLMAN and LOKEN, Circuit Judges, and ROSSITER, District Judge.1
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PER CURIAM.
Julio Carrasco-Palos, a native and citizen of Mexico, petitions for review of an
order of the Board of Immigration Appeals (BIA) dismissing his appeal of an
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska, sitting by designation.
immigration judge’s (IJ) decision denying his motion to reopen his immigration
proceedings sua sponte. We dismiss the petition for lack of jurisdiction.
Carrasco first entered the United States in 1987 and became a lawful permanent
resident in January 1988. He was arrested in Missouri in October 1995 while in
possession of more than thirty kilograms of marijuana. Following a state-court bench
trial, Carrasco was found guilty on February 20, 1997, of second-degree drug
trafficking, a class B felony under Missouri law.
The former Immigration and Naturalization Service (INS) issued Carrasco a
Notice to Appear (NTA) on October 1, 1997, charging him as removable from the
United States for having been convicted of both a controlled substance offense,
8 U.S.C. § 1227(a)(2)(B)(i), and an aggravated felony, id. §§ 1227(a)(2)(A)(iii),
1101(a)(43). Appearing pro se at his removal proceedings, Carrasco “admitted and
conceded” the charges set forth in the NTA. On October 9, 1997, an immigration
judge determined on the basis of Carrasco’s admissions that he was removable on
both charges and that he was not “eligible for relief statutorily.” Carrasco was
physically removed from the United States on October 22, 1997. He did not appeal
the determination to the BIA.
In 2009, Carrasco unlawfully reentered the United States, using his expired
lawful-permanent-resident card. Carrasco was apprehended by the Department of
Homeland Security (DHS) on August 16, 2013, and the DHS reinstated his 1997
removal order under 8 U.S.C. § 1231(a)(5). Carrasco was physically removed from
the United States the same day.
Carrasco filed a motion to reopen his 1997 removal order on August 22, 2014,
more than sixteen years after the order was entered and more than a year after it was
reinstated. Carrasco acknowledged that his motion was untimely, but he asserted that
his 1997 removal proceedings constituted “an exceptional situation and a denial of
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his due process rights” warranting the IJ’s exercise of discretionary authority to
reopen the removal order sua sponte under 8 C.F.R. § 1003.23(b)(1).2 Specifically,
Carrasco alleged that two “recent” Supreme Court decisions “ma[de] it clear” that he
had been eligible in 1997 to seek relief from removal that was then available under
8 U.S.C. § 1182(c) (section 212(c) relief). He contended that he had been wrongly
prevented from seeking such relief by the immigration judge’s erroneous
determination that he was not “eligible for relief statutorily.” Carrasco further argued
that the statutory bar on reopening a reinstated removal order set forth in 8 U.S.C.
§ 1231(a)(5) did not apply because he was requesting that his removal order be
reopened under the immigration judge’s authority to reopen sua sponte.
The IJ initially granted Carrasco’s motion to reopen sua sponte, finding that
exceptional circumstances warranted the exercise of discretion to allow Carrasco an
opportunity to apply for section 212(c) relief. The DHS filed a motion to reconsider,
arguing that the reinstatement of Carrasco’s 1997 removal order under § 1231(a) left
the IJ without jurisdiction to reopen the removal order, even sua sponte. The IJ
granted DHS’s motion to reconsider and denied Carrasco’s motion to reopen,
concluding that reopening the 1997 removal order sua sponte was precluded both by
the statutory bar on reopening a reinstated removal order and by the regulatory bar
2
Motions to reopen before the IJ are governed by 8 C.F.R. § 1003.23, which
provides that the IJ “may upon his or her own motion at any time, or upon motion
of . . . the alien, reopen . . . any case in which he or she has made a decision, unless
jurisdiction is vested with the [BIA].” Motions to reopen before the BIA are
governed by 8 C.F.R. § 1003.2(a), which similarly provides that the BIA “may at any
time reopen or reconsider on its own motion any case in which it has rendered a
decision” and further provides that the BIA “has discretion to deny a motion to
reopen even if the party moving has made out a prima facie case for relief.
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on reopening a removal order after an alien has departed the United States (the
departure bar). See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 1003.23(b)(1).3
The BIA dismissed Carrasco’s appeal, agreeing with the IJ that the
§ 1231(a)(5) statutory bar prohibited reopening the reinstated 1997 removal order and
rejecting Carrasco’s argument that the statutory bar did not apply to sua sponte
reopenings. The BIA further determined that even if the § 1231(a)(5) statutory bar
did not apply to sua sponte reopenings, the regulatory departure bar limited its
discretionary authority to reopen the removal order sua sponte.
Carrasco’s challenge to the BIA’s discretionary decision to deny his motion to
reopen sua sponte fails in light of our decision in Tamenut v. Mukasey, 521 F.3d
1000, 1001 (8th Cir. 2008) (en banc) (per curiam). We explained in Tamenut that the
regulation establishing the BIA’s authority to reopen sua sponte, 8 C.F.R.
§ 1003.2(a), “provides no guidance as to the BIA’s appropriate course of action, sets
forth no factors for the BIA to consider in deciding whether to reopen sua sponte,
places no constraints on the BIA’s discretion, and specifies no standards for a court
to use to cabin the BIA’s discretion.” 521 F.3d at 1004. Accordingly, we held that
there is “no meaningful standard against which to judge the agency’s exercise of
discretion [and] the BIA’s decision whether to reopen proceedings on its own motion
is committed to agency discretion by law.” Id.; see also Barajas-Salinas v. Holder,
760 F.3d 905, 907-08 (8th Cir. 2014). We were “mindful” of BIA precedent stating
that it may reopen removal proceedings sua sponte in “exceptional situations.”
Tamenut, 521 F.3d at 1004. But given the absence of any “statutory, regulatory, or
case-law definition of ‘exceptional situation’ applicable to the BIA’s sua sponte
power under § 1003.2(a),” there was no “meaningful standard for judging whether the
3
The departure-bar regulation provides that “[a] motion to reopen . . . shall not
be made by or on behalf of a person who is the subject of removal, deportation, or
exclusion proceedings subsequent to his or her departure from the United States.”
8 C.F.R. § 1003.23(b)(1).
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BIA [was] required to reopen proceedings” sua sponte, and thus “the BIA [was]
under no obligation to reopen any particular case.” Id. at 1004-05 (citations omitted).
Accordingly, we concluded that “the BIA’s decision whether to reopen proceedings
on its own motion under 8 C.F.R. § 1003.2(a) [was] committed to agency discretion
by law” and that we were without jurisdiction to review the BIA’s discretionary
decision. Id. at 1005; see also Kucana v. Holder, 558 U.S. 233, 251 n.18 (2010)
(holding that federal courts generally have jurisdiction to review for abuse of
discretion the BIA’s denial of a motion to reopen, but “express[ing] no opinion on
whether federal courts may review the [BIA’s] decision not to reopen removal
proceedings sua sponte” and citing Tamenut).
Although we are without jurisdiction to review the BIA’s denial of sua sponte
reopening of removal proceedings, “we generally do have jurisdiction over any
colorable constitutional claim” alleged in a petition for review of such denial. Id. at
1005. Carrasco does not raise a constitutional claim in his petition for review, instead
specifically identifying the “issue [as] a question of law,” namely, “whether the BIA
fully considered whether the statutory/regulatory ‘departure bars’ can per se strip its
authority over sua sponte reopening.” Br. of Petitioner at 10. He notes that several
other circuit courts have exercised jurisdiction over a petition for review of the BIA’s
denial of a motion to reopen sua sponte for the limited purpose of determining
whether the BIA based its decision on an error of law. See Bonilla v. Lynch, 840
F.3d 575, 588-89 (9th Cir. 2016); Salgado-Toribio v. Holder, 713 F.3d 1267, 1271
(10th Cir. 2013); Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011); Mahmood
v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). We have acknowledged, but not
adopted, this approach, and we decline to do so in these circumstances. See Barajas-
Salinas, 760 F.3d at 907-08, 908 n.* (“reserv[ing] judgment on whether this court
would accept the approach of Pllumi and Mahmood . . . , given that the exception to
judicial review for agency action committed to agency discretion is typically
characterized as categorical and the Supreme Court elsewhere has rejected a similar
‘theory of partial reviewability’” and questioning “whether ‘limited’ assertions of
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jurisdiction would be consistent with 5 U.S.C. § 701(a)(2) and this court’s decision
in Tamenut” (citations omitted)). Because Carrasco has not raised a colorable
constitutional claim, we are without jurisdiction to review the BIA’s denial of his
motion to reopen his 1997 removal order sua sponte.
The petition for review is dismissed.
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