Thompson v. Barr
959 F.3d 476
| 1st Cir. | 2020Background
- Thompson, a Jamaican national admitted as an LPR in 1997, pleaded guilty in Connecticut (2001) to second-degree assault; he completed probation and worked thereafter.
- DHS initiated removal proceedings (2012) charging crimes of moral turpitude and aggravated felony based on the 2001 conviction; prior citizenship derivative claim was denied on separate grounds.
- After final removal proceedings, Thompson obtained a full, unconditional pardon from the Connecticut Board of Pardons and Paroles and moved the BIA to reopen proceedings sua sponte, arguing the pardon triggers the INA "pardon waiver" (8 U.S.C. § 1227(a)(2)(A)(vi)).
- The BIA denied the sua sponte motion as untimely/number-barred and held that Connecticut Board pardons are "legislative" (statutorily derived) and thus not effective for the pardon-waiver clause.
- The First Circuit found it has limited jurisdiction to review colorable legal or constitutional errors in denials of motions to reopen sua sponte, concluded the BIA departed from its settled course in treating Connecticut pardons as categorically ineffective, vacated the BIA decision, and remanded for reconsideration under the correct legal framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review BIA denial of sua sponte motion for legal error | Thompson: § 1252(a)(2)(D) and precedent permit limited review of colorable legal/constitutional errors. | Government: sua sponte denials are committed to BIA discretion and not reviewable. | Court: Limited appellate jurisdiction exists to review colorable legal or constitutional errors in sua sponte denials; remand appropriate if BIA relied on incorrect legal premise. |
| Whether a Connecticut Board pardon qualifies as an "executive" pardon under the Pardon Waiver Clause | Thompson: CT Board pardon is executive in nature (deliberative, discretionary) and should qualify to trigger the waiver. | Government: CT Board authority is legislatively derived and therefore cannot qualify as the executive pardons contemplated by the statute. | Court: BIA departed from its settled course—its prior precedent accepts pardons from state supreme pardoning authorities (even if statutorily derived) when executive in nature; remand to apply correct legal standard. |
| Whether the BIA arbitrarily departed from its settled adjudication practice on pardons | Thompson: BIA precedent treats the relevant distinction as executive vs. legislative in nature, not source (statute vs. constitution); BIA failed to explain change. | Government: No coherent settled course; prior decisions are unpublished/limited. | Court: BIA had a settled course accepting pardons from state supreme pardoning authorities when executive; the BIA’s contrary reasoning here was a departure requiring remand. |
| Evidentiary requirement for reopening (certified copy of pardon) | Thompson: He submitted the original pardon; BIA had no basis to require a certified photocopy as a precondition. | Government: BIA invoked a heavy burden and faulted absence of certified photocopy. | Held: Court treats the certified-copy objection as waived by the government on appeal; remand to BIA to reconsider under correct legal standard (dissent limited to this evidentiary point). |
Key Cases Cited
- Gyamfi v. Whitaker, 913 F.3d 168 (1st Cir. 2019) (standard of review for BIA motions to reopen)
- Luis v. INS, 196 F.3d 36 (1st Cir. 1999) (no-review principle for sua sponte BIA denials absent judicially manageable standards)
- Kucana v. Holder, 558 U.S. 233 (2010) (motions to reopen transformed by statutory limits; presumption of reviewability)
- Heckler v. Chaney, 470 U.S. 821 (1985) (agency action committed to discretion lacks judicially manageable standards)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (circuits allowing limited review of legal or constitutional errors in sua sponte denials)
- Pllumi v. Att'y Gen. of U.S., 642 F.3d 155 (3d Cir. 2011) (remand appropriate when BIA relied on incorrect legal premise in sua sponte denial)
- Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009) (recognizing appellate jurisdiction over colorable legal claims in sua sponte context)
- INS v. Abudu, 485 U.S. 94 (1988) (substantive burden on motions to reopen)
- Dávila-Bardales v. INS, 27 F.3d 1 (1st Cir. 1994) (agency must explain departures from settled precedent)
- Rumsfeld v. Padilla, 542 U.S. 426 (2004) (proper venue for core habeas petitions is district of confinement)