Roberto Adonay Galan v. Jefferson Sessions
692 F. App'x 435
| 9th Cir. | 2017Background
- Roberto Galan underwent reasonable-fear proceedings before an immigration judge (IJ), who found he did not establish a reasonable fear of persecution or torture.
- Galan filed a timely petition for review in the Ninth Circuit but the petition was dismissed for failure to file an opening brief; merits of the IJ’s negative reasonable-fear finding are not before the court.
- Galan submitted a filing to the Board of Immigration Appeals (BIA) asserting ineffective assistance of prior counsel; the filing was styled as a notice of appeal from the IJ’s denial of reconsideration.
- The BIA dismissed the filing, stating it lacks authority to review negative reasonable-fear determinations made by IJs under the Attorney General’s regulations.
- Galan argued the BIA should have treated his filing as a motion to reopen; the court considered whether the BIA had authority to entertain such a motion.
- The Ninth Circuit reviewed only the BIA’s determination of its authority to hear the filing and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA must construe Galan’s filing as a motion to reopen and may review it | Galan: BIA should treat the submission as a motion to reopen ineffective-assistance claim | BIA: Regulations bar review of negative reasonable-fear determinations; no authority to reopen these proceedings | Held: BIA properly declined; it lacks authority to review or reopen negative reasonable-fear determinations absent independent authority |
| Whether general reopening regulation supplies independent authority to reopen reasonable-fear proceedings | Galan: 8 C.F.R. § 1003.2(a) (general reopening rule) permits reopening | BIA: That regulation applies only where BIA rendered a prior decision; BIA made no prior decision here | Held: General reopening regulation does not apply because BIA had not rendered a prior decision in the case |
| Whether structure of reasonable-fear proceedings unlawfully denies BIA review | Galan: Implicit challenge to regulatory scheme leaving BIA out of adverse reasonable-fear review | Government: Attorney General may structure agency review; BIA is a regulatory creature and need not have authority here | Held: Challenge lacks merit; AG may decide not to vest BIA with authority to review these IJs’ determinations |
| Whether ineffective-assistance claim changes BIA’s lack of jurisdiction | Galan: Ineffective-assistance claim merits reopening/review despite bar on reasonable-fear review | BIA: Claim is inseparable from the underlying removal order and falls within the bar on review | Held: Ineffective-assistance claim does not overcome the bar; BIA correctly declined to entertain it |
Key Cases Cited
- Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (circuit has jurisdiction to review BIA’s determination of its authority over motions to reopen)
- Sarmadi v. INS, 121 F.3d 1319 (9th Cir. 1997) (motions to reopen are closely related to the underlying removal order)
- INS v. Doherty, 502 U.S. 314 (1992) (BIA is a regulatory creature and the Attorney General may limit its authority)