Jose Anaya-Aguilar v. Eric Holder
683 F.3d 369
7th Cir.2012Background
- Anaya-Aguilar entered the U.S. illegally and received a removal order in 2004.
- The BIA affirmed the IJ's removal order in 2005.
- Anaya-Aguilar moved to reopen in 2007, asserting counsel ineffectiveness and equitable tolling, but the 90-day deadline barred relief absent tolling.
- The Board denied the motion to reopen as time-barred; it also denied reconsideration in 2008, deeming new evidence insufficient for tolling and treating the submission as a second motion to reopen.
- On review, the Seventh Circuit previously lacked jurisdiction to review motions to reopen sua sponte, and Kucana v. Holder (2010) required reconsideration on the merits; on remand, Anaya-Aguilar sought sua sponte reopening, which the Board denied.
- The central issue is whether the Board's denial of sua sponte reopening is reviewable, and the court ultimately affirms that such denial is discretionary and unreviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Board's denial of sua sponte reopening reviewable? | Anaya-Aguilar argues review is available after Kucana. | The Board's sua sponte denial is discretionary and unreviewable. | Unreviewable discretionary decision. |
| Does Kucana overrule Pilch to permit review of sua sponte reopening merits? | Kucana necessitates review of a Board denial to reopen sua sponte. | Pilch remains controlling; Kucana did not overrule it for sua sponte actions. | Pilch remains controlling; review denied. |
| Should the court review the Board's sua sponte reopening decision under Lincoln/Heckler framework? | There is a meaningful standard to judge discretion. | No meaningful standard; action committed to agency discretion by law. | No meaningful standard; unreviewable. |
Key Cases Cited
- Pilch v. Ashcroft, 353 F.3d 585 (7th Cir. 2003) (failure to reopen sua sponte is an unreviewable discretionary decision)
- Kucana v. Holder, 130 S. Ct. 827 (S. Ct. 2010) (court review over denials of motions to reopen; remand to consider merits)
- Munoz de Real v. Holder, 595 F.3d 747 (7th Cir. 2010) (discusses sua sponte reopening; affirms on merits, not reviewability of sua sponte denial)
- Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (agency discretion; sua sponte reopening not reviewable)
- Lincoln v. Vigil, 508 U.S. 182 (U.S. 1993) (presumption of judicial review overridden when statute provides no meaningful standard)