Jayesh K. Shah v. Eric Holder, Jr.
736 F.3d 1125
7th Cir.2013Background
- Jayesh Shah was convicted in 1990 of aggravated criminal sexual abuse (sex offense against a girl under ten) and ordered removed to India; he did not seek judicial review of the 2005 denial of §212(c) relief but later sought reconsideration.
- Shah sought §212(c) relief (pre‑1996 waiver) and argued, after St. Cyr, that he remained eligible despite the 1996 repeal; the IJ and BIA denied relief as a discretionary matter because of the nature of his crime.
- Shah left the U.S. in 2007 and in 2012 filed a motion to reopen and a motion to reconsider based on Judulang, which clarified eligibility standards for §212(c).
- The BIA denied reopening as untimely under 8 C.F.R. §1003.2(c)(2) (90‑day limit) and declined to exercise sua sponte authority, citing the seriousness of Shah’s offense and his foreign residence.
- Shah petitioned for judicial review of the BIA’s refusal to reopen/reconsider, arguing Judulang required reopening and that the BIA improperly weighed his 2007 departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA must reopen proceedings sua sponte when a litigant files a late motion invoking a new precedent | Shah: Judulang requires the BIA to reopen to apply the new legal rule | BIA: No statute or regulation requires sua sponte reopening; discretion to reopen is agency prerogative | Court: No duty to reopen sua sponte; refusal to act is not judicially reviewable absent a legal question |
| Whether the BIA’s refusal to reopen is reviewable under the §1252(a)(2)(D) proviso as a pure question of law | Shah: BIA’s refusal implicated legal error (Judulang) and is reviewable | BIA: Decision was discretionary and factual (crime severity, procedural posture), not a pure legal question | Court: Proviso inapplicable—the BIA’s decision rested on discretion and non‑legal grounds |
| Whether the BIA abused discretion by considering Shah’s departure from the U.S. in denying reopening and relief | Shah: BIA improperly weighed his current residence against reopening and relief | BIA: Alien’s foreign residence is a proper factor in discretionary decisions, especially under §212(c) | Court: Considering post‑removal residence is permissible; no abuse of discretion found |
| Whether Judulang’s change in law requires reopening closed cases retroactively | Shah: Agency must apply new decision retroactively by reopening closed proceedings | BIA: No regulatory/statutory duty to reopen closed cases when law changes | Court: Analogizing to Rule 60(b) jurisprudence, agencies need not reopen closed immigration cases to apply subsequently decided law; Judulang applies only to cases pending when decided |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (establishes that some aliens remain eligible for pre‑1996 §212(c) relief)
- Judulang v. Holder, 565 U.S. 42 (clarified eligibility standard for §212(c) and held Board’s test unlawful)
- Calderon v. Thompson, 523 U.S. 538 (distinguishing true sua sponte action from action in response to a motion)
- Anaya‑Aguilar v. Holder, 683 F.3d 369 (7th Cir.) (agency’s refusal to reopen sua sponte is not judicially reviewable)
- Marin‑Rodriguez v. Holder, 612 F.3d 591 (7th Cir.) (BIA may reopen removal proceedings after alien has left the U.S., but alien’s location is a relevant factor)
- Gonzalez v. Crosby, 545 U.S. 524 (district courts cannot use Rule 60(b)(6) to apply new decisions retroactively to closed civil cases)
- Ackermann v. United States, 340 U.S. 193 (principles limiting reopening of final judgments)
- Whorton v. Bockting, 549 U.S. 406 (retroactivity of new rules in criminal procedure is limited)
- Zambrano‑Reyes v. Holder, 725 F.3d 744 (7th Cir.) (First Amendment based review is available for pure legal questions under §1252(a)(2)(D))
The petitions for review were dismissed.