Phimmady v. Bondi
128 F.4th 18
| 1st Cir. | 2025Background
- Sine Phimmady, a Laotian refugee admitted to the U.S. as a child, was found removable based on two sets of Massachusetts criminal convictions from 1993 related to gang activity as a teenager.
- After serving time in prison and being released to INS supervision, Phimmady established a stable, law-abiding life in Massachusetts for over two decades.
- In 2022, Phimmady’s 1993 convictions were vacated because the judge failed to warn him of immigration consequences, as required by Massachusetts law.
- Phimmady promptly asked the Board of Immigration Appeals (BIA) to reopen his removal proceedings sua sponte due to the vacatur, but the BIA denied the motion, citing lack of exceptional circumstances and delay in seeking post-conviction relief.
- He sought reconsideration, arguing BIA’s past practice was to grant reopening after a conviction was vacated on procedural grounds, but the BIA again denied relief.
- Phimmady petitioned the First Circuit for review, claiming BIA deviated from its established practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA has a settled practice of granting sua sponte reopening when a removal conviction is vacated for procedural defects | Phimmady: BIA routinely grants reopening in such cases, regardless of delay or other equities | Gov't: No such settled practice; BIA considers totality of circumstances, including delay | No settled practice exists; BIA retains discretion |
| Whether BIA’s denial was a legally reviewable departure from its settled course of adjudication | Phimmady: BIA erred in departing from its own practice and thus committed legal error | Gov't: No legal error; BIA decisions are based on discretion and specifics of each case | No legal error; BIA did not depart from established law |
| Whether delay in seeking post-conviction relief can be considered in BIA’s discretionary decision | Phimmady: Delay is irrelevant if the conviction is vacated for procedural flaws | Gov't: Delay and other factors are proper considerations | BIA may consider delay as a relevant factor |
| Whether unpublished BIA decisions can establish a settled course of adjudication | Phimmady: Cites numerous unpublished BIA decisions in support of practice | Gov't: Unpublished decisions are not precedential or binding | Unpublished decisions may inform but do not establish a binding practice |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (distinguishes reviewability of statutory versus discretionary motions to reopen)
- Dada v. Mukasey, 554 U.S. 1 (2008) (explains statutory framework for motions to reopen)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (sua sponte reopening is reserved for truly exceptional situations)
- Thompson v. Barr, 959 F.3d 476 (1st Cir. 2020) (standards for review of BIA denials of reopening)