747 F.3d 493
7th Cir.2014Background
- Jyotsnaben and Pravin Patel applied for asylum; IJ found them not credible, denied relief, and granted voluntary departure in 2002; they failed to depart.
- The Patels appealed to the BIA but filed no brief; the BIA summarily dismissed the appeal in March 2004 and ordered removal.
- Their failure to depart rendered them inadmissible for ten years under the immigration statute.
- In July 2011 the Patels obtained an I-246 stay of removal from ICE (granted Aug. 2012), allowing them to remain temporarily.
- In May 2013 the Patels filed a motion to reopen with the BIA (over nine years after the final order) to seek administrative closure so they could pursue provisional waivers and consular processing abroad.
- The government opposed reopening as untimely and stated it would not consent to administrative closure; the BIA denied the motion as untimely and not warranting sua sponte reopening.
Issues
| Issue | Patel's Argument | Government's Argument | Held |
|---|---|---|---|
| Was the motion to reopen timely or excused from the 90-day deadline? | Motion is justified by recent regulatory and ICE policy changes enabling provisional waivers and favorable prosecutorial discretion. | Motion filed nearly nine years late; statutory exceptions (e.g., changed country conditions) do not apply to administrative/regulatory changes. | Denied: statute requires 90-day filing; regulatory/administrative changes are not statutory exceptions. |
| Should the BIA reopen sua sponte? | BIA should exercise sua sponte authority in light of ICE policy and prior stay. | BIA discretionary decisions not reviewable; no abuse of discretion shown. | Denied: court will not review BIA refusal to reopen sua sponte. |
| Could the BIA exercise prosecutorial discretion to reopen/administratively close? | ICE memo and prior stay suggest discretion should favor reopening and administrative closure. | BIA lacks authority to bind prosecutorial discretion; such decisions are committed to the executive and unreviewable; ICE memo creates no enforceable rights. | Denied: BIA cannot be required to exercise prosecutorial discretion; refusal not reviewable and not an abuse. |
| Would reopening be meaningful if DHS refuses administrative closure? | Reopening would enable pursuit of provisional waivers and consular processing. | DHS opposes administrative closure; without consent, provisional waivers remain unavailable, making reopening pointless. | Denied: reopening would be futile without government consent. |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (Voluntary departure consequences and inadmissibility)
- Hadayat v. Gonzales, 458 F.3d 659 (7th Cir.) (effect of failure to comply with voluntary departure)
- Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir.) (standard of review for BIA motions-to-reopen decisions)
- Marino v. Holder, 687 F.3d 365 (7th Cir.) (abuse-of-discretion review for BIA denial of motions to reopen)
- Shah v. Holder, 736 F.3d 1125 (7th Cir.) (non-reviewability of BIA refusal to reopen sua sponte)
- Anaya–Aguilar v. Holder, 683 F.3d 369 (7th Cir.) (limits on judicial review of BIA sua sponte decisions)
- Kim v. Holder, 737 F.3d 1181 (7th Cir.) (BIA not empowered to exercise prosecutorial discretion; nonreviewability)
- Alimi v. Ashcroft, 391 F.3d 888 (7th Cir.) (purpose of voluntary departure and consequences for agency resources)