Henrikas Malukas v. William Barr, 940 F.3d 968

Malukas, a Lithuanian national, entered the U.S. in 1992, overstayed his visa, and was convicted of weapons offenses in 1995 and sentenced to prison.
While incarcerated, removal proceedings were initiated; an IJ and the BIA denied discretionary relief despite family ties, and the BIA entered a final order in July 2003.
Malukas filed a timely motion for reconsideration in 2003 (denied) but did not seek judicial review; he remained in the U.S. because Lithuania would not issue travel documents.
In 2018 he filed a second motion to reopen and reconsider, arguing (inter alia) that the original Notice to Appear (NTA) lacked a date/time (Pereira), and that changed equities and Lithuania’s refusal to accept him justified relief.
The BIA denied the 2018 filings as time-and-number barred, stated that the NTA defect does not affect jurisdiction, and declined to reopen sua sponte; Malukas sought review.
The Seventh Circuit held the BIA did not err on the jurisdictional point, treated the filings as untimely/successive, and ruled that denial of sua sponte reopening is an unreviewable discretionary act; petition denied/dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an NTA that omits date/time deprives the IJ of jurisdiction	Malukas: Pereira defect vitiates jurisdiction and the removal order	BIA: defect does not deprive the IJ of jurisdiction	Court: Agrees with BIA (consistent with Ortiz-Santiago); no jurisdictional defect that avoids time bar
Whether the 2018 filings can overcome time-and-number bars	Malukas: changed equities and rehabilitation justify reopening/reconsideration despite delay	BIA: motions are untimely/successive and barred by statutory limits	Court: Motions are time-and-number barred and properly denied
Whether labeling a filing a “motion to reopen sua sponte” avoids procedural bars	Malukas: adding "sua sponte" circumvents limits	BIA: a motion so labeled is still a motion and subject to limits; sua sponte action is a separate discretionary act	Court: Rejects Malukas; "motion to reopen sua sponte" is an oxymoron and does not evade limits
Whether denial of sua sponte reopening is judicially reviewable	Malukas: seeks review of BIA’s refusal to act sua sponte	BIA/AG: refusal is committed to agency discretion and unreviewable under §1252(a)(2)(B) and Chaney	Court: Denial of sua sponte reopening is discretionary and not reviewable; petition dismissed for lack of jurisdiction

Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA lacking date/time implicates notice rules)
Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (defect in NTA does not deprive IJ of jurisdiction)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (substantive claims in Rule 60(b)-type filings count as successive petitions)
Calderon v. Thompson, 523 U.S. 538 (1998) (recall of a mandate treated as petition for rehearing)
Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008) (BIA must state reasons when denying a genuine timely motion to reopen)
Anaya-Aguilar v. Holder, 683 F.3d 369 (7th Cir. 2012) (BIA’s sua sponte reopening is unreviewable)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency decisions to refrain from enforcement are presumptively unreviewable)
Fuller v. Whitaker, 914 F.3d 514 (7th Cir. 2019) (panel held courts may assess whether BIA misunderstood the basis of a request)
Butka v. Attorney General, 827 F.3d 1278 (11th Cir. 2016) (contrasting circuit view on reviewability of BIA sua sponte decisions)
Rais v. Holder, 768 F.3d 453 (6th Cir. 2014) (contrasting circuit view on reviewability of BIA sua sponte decisions)