Lemus v. Sessions
900 F.3d 15
| 1st Cir. | 2018Background
- Laura and Manuel Lemus, Guatemalan nationals, overstayed tourist visas and applied for asylum in 1997; asylum officer and IJ found Laura not credible and denied relief; final removal order entered 2001.
- The BIA summarily dismissed the Lemuses' appeal in 2001; the family thereafter filed 17 motions to reopen or reconsider, all denied; prior petitions for review were denied or dismissed by this Court.
- In August 2017 the Lemuses moved to reopen based on a new ground: their daughter Mirna became a U.S. citizen and filed visa petitions making them potentially eligible for adjustment of status, which the removal order prevented.
- The BIA denied the motion as time- and number-barred and held that eligibility for adjustment of status is not an exception to the statutory bars; it also declined to reopen sua sponte, finding no "exceptional circumstances."
- The Lemuses petitioned for review, arguing the BIA abused its discretion in denying the motion, violated policy (Matter of Garcia), and improperly refused to reopen sua sponte, including by denying due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the motion to reopen timely and within the one-motion rule? | Lemus: New visa petitions from their U.S. citizen daughter create new grounds for reopening; BIA should consider them. | Gov: Motion filed ~16 years after final order; statutory time and number bars apply; adjustment eligibility is not an exception. | Denied — motion untimely and numerically barred; BIA did not abuse discretion. |
| Does eligibility to apply for adjustment of status excuse time/number bars? | Lemus: Adjustment eligibility arising after the order justifies reopening. | Gov: Statute and regulations list exceptions; adjustment eligibility is not one of them. | Rejected — adjustment eligibility is not an exception to the bars. |
| Is the BIA's refusal to reopen sua sponte reviewable by the court? | Lemus: Mata and 8 U.S.C. §1252(a)(2)(D) permit review; due process and policy (Garcia) claims make the denial reviewable. | Gov: Sua sponte reopening is committed to BIA's unreviewable discretion; Mata did not grant review; §1252(a)(2)(D) does not provide jurisdiction here. | Dismissed for lack of jurisdiction as to sua sponte denial; court declines to review. |
| Did the BIA violate policy or due process in refusing sua sponte reopening? | Lemus: BIA departed from Matter of Garcia and gave an inadequate explanation, denying due process and acting arbitrarily. | Gov: Garcia is not an inflexible rule, has been modified, and does not create a binding entitlement; BIA provided reasoned decision. | Rejected — no cognizable liberty interest from discretionary sua sponte relief; Garcia does not create a colorable legal claim here. |
Key Cases Cited
- Sánchez–Romero v. Sessions, 865 F.3d 43 (1st Cir. 2017) (standard of review for motions to reopen)
- Dada v. Mukasey, 554 U.S. 1 (2008) (statutory one-motion rule and time limit for reopening)
- Charuc v. Holder, 737 F.3d 113 (1st Cir. 2013) (sua sponte reopening entrusted to BIA discretion; courts lack jurisdiction)
- Matos–Santana v. Holder, 660 F.3d 91 (1st Cir. 2011) (same principle on sua sponte discretion)
- Reyes Mata v. Lynch, 135 S. Ct. 2150 (2015) (Supreme Court declined to resolve the scope of review over sua sponte reopening)
- Ayeni v. Holder, 617 F.3d 67 (1st Cir. 2010) (§1252(a)(2)(D) jurisdictional limits and "colorable" legal claims)
- Mejia–Orellana v. Gonzales, 502 F.3d 13 (1st Cir. 2007) (due process requires a cognizable liberty interest)
- INS v. Yang, 519 U.S. 26 (1996) (judicial review standards for discretionary agency action)
- Oluyemi v. INS, 902 F.2d 1032 (1st Cir. 1990) (Matter of Garcia conferred broad discretion, not a mandatory rule)