Pllumi v. Attorney General of the United States
642 F.3d 155
| 3rd Cir. | 2011Background
- Pllumi is a native and citizen of Albania who entered the U.S. illegally and is removable under 8 U.S.C. § 1182(a)(6)(A)(i).
- He filed for asylum, withholding of removal, and CAT protection; the IJ denied relief and the BIA affirmed.
- Pllumi moved to reopen and reconsider in 2009; the BIA denied as untimely and declined sua sponte reopening.
- He argued the BIA abused its discretion by misperceiving law on changed country conditions and health-care harms.
- The Third Circuit exercised jurisdiction to review the BIA’s reasoning for sua sponte reconsideration and remanded for clarification.
- Court granted review, vacated, and remanded for the BIA to reexamine its authority in light of health-care harms and correct legal background.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and changed country conditions | Pllumi—Pllumi seeks reopening based on changed conditions. | Attorney General—timeliness not met; evidence insufficient. | Untimely unless material, new evidence shows changed conditions. |
| BIA's sua sponte reopening authority and health-care harms | Pllumi health concerns could qualify as other serious harm. | BIA rejected health issues as irrelevant to reopening. | Potential misperception of law; remand for clarification. |
| Scope of 'other serious harm' in humanitarian asylum | Health-care deficiencies could trigger 'other serious harm.' | Only certain harms qualify; healthcare not categorically excluded. | Health concerns may fit within 'other serious harm' in extreme circumstances. |
| Remand procedure and limits on review | Remand is appropriate to clarify basis for decision. | Remand can be limited; final reopened decision remains with BIA. | Remand granted to clarify basis; not reviewable at this stage. |
Key Cases Cited
- INS v. Doherty, 502 U.S. 314 (1992) (standard of review for denial of motions to reopen/reconsider in immigration cases)
- Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003) (abuse-of-discretion review in immigration context; deference to BIA)
- Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006) (deference to BIA; abuse of discretion standard)
- Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003) (limits on reviewing BIA's sua sponte reopening decisions)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (remand when BIA's decision rests on misperception of law; adopt second circuit approach)
- Dada v. Mukasey, 554 U.S. 1 (2008) (withdrawal from voluntary departure to pursue motion to reopen (impact on timeliness))
- Sheriff v. Att'y Gen., 587 F.3d 584 (3d Cir. 2009) (definition of 'other serious harm' in humanitarian asylum)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (Supreme Court on reviewability of BIA's sua sponte reopening)