Muhammad Rais v. Eric Holder, Jr.
768 F.3d 453
| 6th Cir. | 2014Background
- Rais, a Pakistani national, is under a final removal order and has twice moved to reopen the proceedings; the second motion was denied as untimely and number-barred, and the BIA refused sua sponte reopening, prompting Rais to seek judicial review.
- The immigration-adjudication framework bifurcates jurisdiction: USCIS handles some arriving aliens’ adjustments; others proceed before IJ/BIA; Rais’s status concerns fell into the USCIS-exclusive jurisdiction category for adjustment of status.
- Rais sought to suspend removal while USCIS adjudicated his latest adjustment application; the BIA denied the second motion to reopen, triggering judicial review challenges.
- The petition was timely filed but the question is whether the court has jurisdiction to review the BIA’s denial of a sua sponte reopening, given governing circuit precedent that such sua sponte reopening decisions are nonreviewable.
- This court ultimately dismisses Rais’s petition for lack of jurisdiction, reaffirming that the BIA’s sua sponte reopening authority is discretionary and not reviewable, and that Kucana does not override Barry/Harchenko.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA’s denial of the second motion to reopen. | Rais contends Congress allows review of final orders and related denials. | Barry and Harchenko preclude review of sua sponte reopening decisions. | Lack of jurisdiction; BIA sua sponte reopening is not reviewable. |
| Whether Kucana undermines Barry and Harchenko regarding sua sponte reopening. | Rais argues Kucana undermines prior precedents. | Kucana does not overrule Barry/Harchenko. | Kucana does not override Barry/Harchenko; no jurisdiction to review. |
| Whether 8 U.S.C. § 1252(a)(2)(D) can provide a basis for review of constitutional claims or questions of law in this context. | § 1252(a)(2)(D) authorizes review notwithstanding other provisions. | Issue waived; even if considered, Barry/Harchenko control. | Waived; even if reached, Barry/Harchenko foreclose review of sua sponte denials. |
Key Cases Cited
- Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008) (BIA sua sponte reopening not reviewable)
- Harchenko v. INS, 379 F.3d 405 (6th Cir. 2004) (agency discretion; no judicial review of sua sponte decisions)
- Gor v. Holder, 607 F.3d 180 (6th Cir. 2010) (post-Kucana; sua sponte review remains unavailable)
- Kucana v. Holder, 558 U.S. 233 (Supreme Court 2010) (limits on review of discretionary decisions; not to overrule Barry/Harchenko)
- INS v. Doherty, 502 U.S. 314 (Supreme Court 1992) (BIA authority to reopen is regulatory; discretionary)