Mendiola v. Lynch
655 F. App'x 653
10th Cir.2016Background
- Mendiola, a Peruvian national, became a lawful permanent resident in 1989 and later was convicted twice in California for possession of a controlled substance; the second conviction led to removal as an aggravated felon under the immigration laws.
- He filed multiple motions to reopen with the BIA; earlier motions were denied under the post-departure bar (8 C.F.R. §1003.2(d)).
- The Supreme Court in Carachuri-Rosendo (2010) held a second state controlled-substance conviction is an aggravated felony only if enhanced based on a prior conviction (i.e., recidivist enhancement), and the Tenth Circuit later invalidated the post-departure bar in Contreras-Bocanegra (2012).
- Mendiola filed a third motion to reopen, asking the BIA to exercise sua sponte authority, arguing Carachuri-Rosendo made him eligible for cancellation of removal under 8 U.S.C. §1229b(a).
- The BIA, after remand from this court to address Carachuri-Rosendo footnote 8, assumed arguendo Mendiola remained eligible for cancellation but denied sua sponte reopening based on discretionary factors (criminal and immigration history).
- The Tenth Circuit dismissed the petition for lack of jurisdiction, holding decisions to deny sua sponte reopening are discretionary and unreviewable when no question of law or constitutional claim remains.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA must sua sponte reopen when a change in law (Carachuri-Rosendo) renders a removal-based ineligibility erroneous | Mendiola: Carachuri-Rosendo corrected the legal basis for his removal; BIA had no discretion to refuse reopening based on an erroneous legal determination | Government/BIA: Sua sponte reopening is entirely discretionary; a change in law may justify reopening but does not compel it | Held: Denial of sua sponte reopening is discretionary and unreviewable where no legal question remains; petition dismissed for lack of jurisdiction |
| Whether the BIA’s decision conflicted with footnote 8 of Carachuri-Rosendo, raising a reviewable legal question | Mendiola: Prior remand required the BIA to reconcile its conclusion with footnote 8 and could not rest on legal error | BIA: On remand assumed eligibility under §1229b(a), eliminating any legal error claim and deciding only discretion remains | Held: Because the BIA assumed eligibility, no underlying legal error remained to review; only discretionary denial left |
| Whether Doherty or other precedents require reopening when law changes | Mendiola: Cites Doherty and Board decisions to argue change in law requires reopening | Government/BIA: Doherty’s plurality reasoning is not controlling; prior authorities recognize BIA discretion | Held: Doherty and Carachuri-Rosendo do not mandate sua sponte reopening; BIA discretion stands |
| Whether the BIA exceeded the remand scope by addressing equitable tolling | Mendiola: Argued equitable tolling based on Contreras-Bocanegra should apply | BIA/Government: Considering equitable tolling exceeded the mandate of the remand | Held: Court declines to review equitable tolling claim because BIA exceeded remand scope and mandate rule bars consideration |
Key Cases Cited
- I.N.S. v. Doherty, 502 U.S. 314 (1992) (discussing standards for denying motions to reopen and limits of relief when evidence or procedural reasons justify denial)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (held second state controlled-substance conviction is an aggravated felony only if enhanced based on prior conviction)
- Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (invalidated BIA post-departure bar as inconsistent with statutory right to file one motion to reopen)
- Salgado–Toribio v. Holder, 713 F.3d 1267 (10th Cir. 2013) (held courts lack jurisdiction to review BIA’s discretionary refusal to sua sponte reopen)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004) (same: no jurisdiction to review BIA’s exercise of sua sponte authority)