Kap Sun Bukta v. U.S. Attorney General
827 F.3d 1278
| 11th Cir. | 2016Background
- Kap Sun Butka, a South Korean national, was charged in 2007 with overstaying her visa and having a 1977 South Korean drug conviction alleging possession of 105 grams of marijuana; she admitted the NTA allegations and sought adjustment of status and a §212(h) waiver.
- DHS later amended charges to allege overstaying; IJ found her removable and ineligible for adjustment or a §212(h) waiver because the conviction involved more than simple possession of 30 grams.
- The BIA affirmed in 2010; this Court denied review in 2011 of her constitutional and legal claims, finding documentary record showed the conviction involved more than 30 grams.
- In 2015 Butka moved the BIA to sua sponte reopen, arguing (with a translated judgment) that she actually had two concurrent convictions (100g possession and 5g distribution) and that the 5g offense could qualify for a §212(h) waiver or be non-categorical under intervening law; she also sought transfer to Ninth Circuit.
- The BIA denied the 2015 motion as untimely and not presenting exceptional circumstances to warrant sua sponte reopening; Butka appealed to the Eleventh Circuit.
- The Eleventh Circuit granted the government’s motion to dismiss for lack of jurisdiction, holding Lenis controls and Mata did not open review of purely discretionary sua sponte denials absent constitutional claims.
Issues
| Issue | Plaintiff's Argument (Butka) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review BIA denial of sua sponte reopening | Butka: Mata allows courts to review legal questions underlying a sua sponte motion and remand if legal error exists | Gov: Lenis bars appellate review of BIA denials of sua sponte reopening; Mata does not abrogate Lenis | Court: No jurisdiction under Lenis; Mata does not alter rule; dismissal granted |
| Whether the BIA abused discretion in denying sua sponte reopening for alleged legal changes | Butka: intervening law and new reading of her Korean judgment create likelihood of different result | Gov: Motion rehashes facts available earlier; discretionary sua sponte relief not reviewable | Court: Could not reach merits because jurisdictional bar applied |
| Whether Butka may withdraw prior admissions and relitigate conviction facts via sua sponte motion | Butka: new evidence (translated judgment) shows different convictions and eligibility | Gov: Reopening cannot be used to relitigate facts long available; discretionary denial unreviewable | Court: Jurisdictional bar prevents review of these arguments |
| Whether Mata permits bifurcated review (legal issues but not sua sponte discretion) | Butka: Mata supports reviewing legal claims tied to sua sponte requests | Gov: Mata only preserves review of statutory motions and tolling; it doesn’t authorize review of pure sua sponte denials | Court: Mata does not undermine Lenis; Mata limited to statutory reopening/equitable tolling claims |
Key Cases Cited
- Lenis v. U.S. Att’y Gen., 525 F.3d 1291 (11th Cir. 2008) (holding appellate courts lack jurisdiction to review BIA denials of sua sponte reopening)
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (clarifying courts retain jurisdiction over statutory reopening/equitable tolling claims even if BIA also declines sua sponte relief)
- Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (discussing equitable tolling in statutory motions to reopen)
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009) (recognizing appellate review of BIA denials of statutory motions to reopen)