Lenis v. U.S. Att'y Gen'l (11th Cir. 5/5/08)

MARCUS, Tjoflat, Vinson (DCt)

The 11th Cir joined 10 other circuits in finding no jurisdiction over sua sponte denials - its reasoning imitated the 8th circuit's reasoning in Tamenut v. Mukasey, __ F.3d __, 2008 WL 637617 (8th Cir. Mar. 11, 2008) (en banc), which found a lack of jurisdiction not based on 1252, but based on the absence of any meaningful standard against which to review the Board's denial.

Read decision here: 

1.  CtApp joined 10 other circuits in finding no jurisdiction over denials of sua sponte reopening (after finding that its earlier decision in Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999) was only dicta).

   Ten courts of appeals have held that they have no jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen based on its sua sponte authority. See Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir. 2003); Doh v. Gonzales, 193 F. App’x 245, 246 (4th Cir. 2006) (per curiam) (unpublished); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir. 2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir. 2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Tamenut v. Mukasey, __ F.3d __, 2008 WL 637617 (8th Cir. 2008) (en banc) (per curiam); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir. 2003).4 We agree with our sister circuits and join them in holding that we have no jurisdiction to entertain this kind of appeal.

2.  Follows 8th Cir in Tamenut, bases lack of jurisdiction on absence of any meaningful standard.

   Neither the statute nor the regulation at issue today provides any “meaningful standard against which to judge the agency’s exercise of discretion.” Indeed, no statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives from a statute that grants general authority over immigration and nationalization matters to the Attorney General, and sets no standard for the Attorney General’s decision-making in this context. See 8 U.S.C. § 1103(g)(2).5 Likewise, while the regulation itself, 8 C.F.R. § 1003.2(a), expressly gives the BIA discretion to sua sponte reopen cases, it provides absolutely no standard to govern the BIA’s exercise of its discretion.

   * * * Thus, as the Eighth Circuit has recently concluded, “[t]he regulation itself, 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.” Tamenut, 2008 WL 637617, at *3.

3.  Reserves the question of whether there might be a constitutional claim that is within CtApp's jurisdiction.

   FN7 We note, in passing, that an appellate court may have jurisdiction over constitutional claims related to the BIA’s decision not to exercise its sua sponte power. As the Eighth Circuit observed, “[a]lthough this court lacks jurisdiction over Tamenut’s challenge to the BIA’s decision not to reopen sua sponte, we generally do have jurisdiction over any colorable constitutional claim.” Tamenut, 2008 WL 637617, at *4 (citations omitted). However, no constitutional claim is raised today, and we, therefore, have no occasion to examine that question.

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