Jose Barajas-Salinas v. Eric H. Holder, Jr.
760 F.3d 905
8th Cir.2014Background
- DHS initiated removal proceedings against Barajas-Salinas in 2008 based on a Utah drug conviction, making him removable as an alien convicted of a state drug offense under 8 U.S.C. § 1227(a)(2)(B)(i).
- An IJ denied removal and Barajas-Salinas sought cancellation of removal, which the Board affirmed; this court previously dismissed his petition for lack of jurisdiction over cancellation claims.
- In April 2013, Barajas-Salinas moved to reopen based on new factual information, and alternatively sought sua sponte reopening under 8 C.F.R. § 1003.2(a); the Board denied in June 2013.
- Barajas-Salinas filed August/September 2013 motions to reopen and to have the June 2013 decision reissued; Descamps (2013) was cited as controlling law thereafter.
- The Board reissued its decision in September 2013, treated the September 2013 filing as untimely, and declined sua sponte reopening, holding Descamps did not compel reopening; Barajas-Salinas petitioned for review, which this court dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review June 2013 denial of April 2013 motion | Barajas-Salinas contends Board abused discretion in evaluating new facts. | Board decision falls within § 1252(a)(2)(C)-(D) and reviews are limited to constitutional/legal claims. | No jurisdiction; only legal claims can be reviewed. |
| Reviewability of the Board's sua sponte rejection | Contends there is a limited exception to discretionary denial for fundamental changes in law. | Sua sponte reopening and its standards are committed to agency discretion with no meaningful standard of review. | No jurisdiction to review sua sponte denial. |
| Whether Descamps constituted a fundamental change in the law warranting reopen | Descamps represents a fundamental change that could affect removability. | Board may treat Descamps as a discretionary, intervening development; not a mandatory reopening trigger. | Court lacks jurisdiction to review the criterion of a fundamental change; discretionary decision stands. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach to recidivism under ACCA; convergence with U.S. federal/state offense elements)
- Hanan v. Mukasey, 519 F.3d 760 (8th Cir. 2008) (jurisdictional limits on review of removal-related motions)
- Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc; discretionary nature of agency action in reopening)
- Pllumi v. Att’y Gen., 642 F.3d 155 (3d Cir. 2011) (exceptional situations and misinterpretation as grounds for limited review)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (agency’s mistaken view on procedural aspects; limited review of legal premises)
- In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999) (recognition of fundamental change in law as a basis for reopening)
- Matter of X-G-W-, 22 I. & N. Dec. 71 (BIA 1998) (basis for invoking fundamental change in law as exceptional reopening)