Lead Opinion
LAWSON, D.J., delivered the opinion of the court. BATCHELDER, C.J. (pp. 193— 96), delivered a separate concurring opinion. COLE, J. (pp. 196-99), delivered a separate opinion, concurring in part and concurring in the judgment.
OPINION
Petitioner Tushar Gor, a citizen of India, seeks review of a removal order entered on the ground that Gor is an “alien ... convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)®. Gor was convicted under section 2919.21(B) of the Ohio Revised Code, which prohibits “abandon[ment], or failure] to provide support as established by a court order to, another person whom, by court order or decree, the person is legally obligated to support.” Ohio Rev.Code Ann. § 2919.21(B). Al
I.
The petitioner, a twenty-nine-year-old citizen of India, was admitted to the United States as a lawful permanent resident on February 27, 1985, when he was four years old. Both of his parents are naturalized United States citizens who retired to live in India in January 2005. The petitioner’s brother resides in the United States, and the petitioner’s own ties to India are limited to three trips he made there during the 1990s for a total period of less than three months. The petitioner earned an associate’s degree in computer electronics, but upon graduation worked at various manual-labor jobs outside of the computer electronics field. The petitioner’s connections to the United States grew stronger when, at the age of seventeen, he fathered twin sons out of wedlock. It is his failure to provide financial support for his sons that causes his current immigration difficulties.
Gor was charged and convicted of four counts of felony non-support under Ohio Revised Code section 2919.21(B) on September 22, 2004, and three more counts of the same charge on May 26, 2006. In the first case, he was charged with “recklessly failing to provide support as established by a court order” when he fell behind on his child support obligations, and he was sentenced to three years of community control. However, Gor apparently failed to report to his probation officer, and when the child support arrearage continued to accumulate, he was charged with three more counts of “abandoning] or failing] to provide support” and was convicted on May 26, 2006. This time, he was sentenced to a twenty-four-month custody term (eight months on each of the counts).
Shortly after the 2006 sentencing, on June 16, 2006, the U.S. Department of Justice issued the petitioner Form 1-862, Notice to Appear, which formally placed him in removal proceedings. Master calendar hearings were held in the petitioner’s case on October 18, 2006, November 15, 2006, and February 20, 2007, and the petitioner appeared for all of those hearings via a telemonitor from the Orient Confinement Facility in Ohio. During the October 18, 2006 hearing, the immigration judge advised the petitioner that he had a right to a lawyer at his own expense, and if
Q. Sir, we had a prior proceeding in this case and I’ve advised you of your rights to a lawyer. Do you have a lawyer, sir?
A. Not at this time, Sir, I contacted about 75 lawyers, each one I got a response from said they can’t do it for under $2,000 which right now I don’t have the capable means of, as I’m locked up.
Q. Okay, sir, well, I’m going to proceed with your case. I stated before, U.S. Government doesn’t provide you with a lawyer and if a charitable organization’s not going to represent you, then you’re going to have to proceed without a lawyer.... Do you understand?
A. Yes, Sir.
App’x at 30-31. During the hearing, the petitioner admitted all the allegations made in the Notice to Appear, and the IJ found him in violation of section 237(a)(2)(E) as having been convicted of a crime of child neglect or abandonment. Since the petitioner indicated a desire to file for asylum, the judge set the case for an individual hearing.
At the final individual hearing on April 10, 2007, Gor, again appearing pro se, moved for cancellation of removal under section 240A of the Immigration and Nationalization Act. The IJ denied Gor’s request.
On May 10, 2007, the petitioner appealed to the BIA, still proceeding pro se, challenging only the merits of the cancellation-of-removal determination. On October 5, 2007, the BIA affirmed the Immigration Judge’s decision without opinion. Gor did not file a petition for review of this decision within ninety days.
On May 20, 2008, Gor had retained counsel, who moved the BIA to reopen removal proceedings sua sponte under 8 C.F.B.. § 1003.2(a). For the first time, the petitioner raised the following four arguments: (1) his Ohio state convictions of nonsupport are not removable offenses under 8 U.S.C. § 1227(a)(2)(E)(i); (2) the IJ erred when he did not provide the petitioner with a list of low-cost immigration attorneys in the area; (3) the petitioner was denied due process when the IJ proceeded with the removal hearing despite the petitioner’s inability to retain an attorney; and (4) the IJ erred when he failed to advise the petitioner of the availability of and consider discretionary relief from removal available to the petitioner. The BIA denied the motion on June 11, 2008, finding that the ease was “not an exceptional situation” since “[a]ll of the claims presented by the respondent ... could have been presented to the Board on appeal,” and the case law Gor cited came from “outside of the Sixth Circuit,” was “unpublished[,] or not directly relevant.” App’x at 9.
The petitioner filed a timely petition for review of this decision, raising the four arguments presented to the BIA in his petition to reopen. As noted earlier, the
II.
Before we may consider the merits of the petitioner’s claims, we must address the question of jurisdiction. The government had moved to dismiss the petition, arguing that the underlying removal order is beyond our jurisdiction because the petitioner did not file a petition to review that order within ninety days after it was issued, as required by 8 U.S.C. § 1252(b)(1) (which now requires a review petition to be filed “not later than 30 days after the date of the final order of removal”); the petitioner’s arguments on appeal are not exhausted because the petitioner never properly presented them to the BIA for consideration; and this court lacks jurisdiction to review the BIA’s decision not to reopen the proceedings sua sponte because that decision was based on the agency’s exercise of discretion and Congress has stripped courts of “jurisdiction to review ... any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The petitioner responds that his claims are based on the Constitution and raise questions of law, and Congress has provided that the jurisdiction-stripping statutes are not to “be construed as precluding review of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).
A. Order of Removal
The BIA affirmed the IJ’s final order of removal on October 5, 2007. Generally, once an alien is found to be removable in a final agency order, he can file one motion to reconsider and one motion to reopen the removal proceedings with the agency, see 8 U.S.C. § 1229a(c)(6)-(7), or he can proceed directly to a court of appeals. 8 U.S.C. § 1252(b)(2). The time limits for filing a motion for reconsideration and a motion to reopen are “crystal clear.” Randhawa v. Gonzales,
Besides equitable tolling, the regulations set forth four other exceptions to the timely filing of a motion to reopen with the agency: deadlines are relaxed for “motions to reopen (1) filed by aliens who are deported in absentia-, (2) filed by aliens seeking asylum or withholding of deportation based on changed country circumstances; (3) jointly filed by the alien and the INS; and (4) filed by the INS where the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.” Harchenko v. INS,
After a final order of removal is entered by the BIA, pursuing further review within the agency does not toll the time period for seeking judicial review in the court of appeals under 8 U.S.C. § 1252(b)(1) or divest an agency decision of its finality. Stone v. INS,
Once the BIA affirmed the final order of removal in this case, Gor had several options. First, he could have moved to reopen the removal proceedings within ninety days of October 5, 2007. Second, he could have moved for reconsideration within thirty days of the order. Third, he could have petitioned this court directly, provided he did that within thirty days of October 5. The petitioner took none of these steps within the time allowed — most likely because he was still unrepresented and incarcerated. Instead, he waited for 228 days until May 20, 2008 to file a motion for the agency to reopen its proceedings sua sponte. Because the petition for review of the final order of removal was untimely, the government is correct that we have no jurisdiction to address it, and that aspect of its motion to dismiss must be granted.
B. Exhaustion
According to 8 U.S.C. § 1252(d)(1), the circuit court has no jurisdiction to review a petition challenging a final order of removal unless “the alien has exhausted all administrative remedies available to the alien as of right.” See Hassan v. Gonzales,
Notably, however, “[t]he streamlined-affirmanee-without-opinion procedure is not a dismissal, but instead a review of the merits of an appeal.” Hassan, 403 F.3d at
The petitioner in this case presented each of the four issues raised in this court to the BIA in his tardy motion to reopen the proceedings. As discussed below, it is not clear that the BIA considered the merits of those issues. However, the petitioner’s presentation satisfied the requirements of 8 U.S.C. § 1252(d)(1).
C. Motion to Reopen Sua Sponte
The government argues that we have no jurisdiction to review the BIA’s denial of the untimely motion to reopen because of 8 U.S.C. § 1252(a)(2)(B), which states:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review — ■
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security....
8 U.S.C. § 1252(a)(2)(B)(ii). The government correctly notes that BIA has discretion to reopen its proceedings on its own “at any time.” 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.”). Since the agency’s regulations characterize the decision as discretionary, the government reasons, section 1252(a)(2)(B) bars review. The government also points out that our precedent indicates that decisions committed to agency discretion by regulation are beyond judicial review. See Barry,
In Kucana v. Holder, — U.S.-,
The Court concluded that Congress intended judicial review of motions to reopen to be as broad as it was before the IIRIRA was enacted: “The BIA has broad discretion, conferred by the Attorney General, ‘to grant or deny a motion to reopen,’ 8 C.F.R. § 1003.2(a), but courts retain jurisdiction to review, with due respect, the Board’s decision.” Kucana,
The Court’s holding in Kucana was clear: “While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so.” Id. at 840. Were it otherwise, “the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary. ’” Ibid.
We therefore reject the government’s argument that review of the denial of the petitioner’s motion to reopen is barred by the confluence of 8 U.S.C. § 1252(a) (2) (B) (ii) and 8 C.F.R. § 1003.2(4).
The government also cites our precedents — Harchenko v. INS and Barry v. Mukasey — as an additional ground for finding a lack of jurisdiction to review the denial of the motion to reopen. In Harchenko, a panel of this court was asked to overturn the BIA’s refusal to reopen a matter sua sponte. The court observed that the decision whether to reopen was within the BIA’s discretion, and looking to the Supreme Court’s decision in Heckler v. Chaney,
However, we believe the Supreme Court’s reasoning set out in Kucana undermines the continuing validity of Harchenko and Barry, since both cases are based on the same premise rejected in Kucana. Barry adopts the holding from Harchenko without analysis or discussion. Harchenko, in turn, after citing cases from other circuits, relies heavily on the Supreme Court’s decision in Heckler v. Chaney,
Heckler itself rejected a claim by several death row inmates who sought a mandatory injunction to compel the Food and Drug Administration to enforce provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., (FDCA) against officials in states that had adopted the lethal injection method for carrying out a death sentence. The inmates argued that the FDCA prohibited off-label use of drugs, and that the drugs chosen by the states could not be used for that purpose until the FDA approved the drugs as “safe and effective” for human execution. Id. at 827,
In Heckler, the Court determined that Congress can restrict the jurisdiction of federal courts over certain agency actions under the APA by deeming them “discretionary” and drafting “statutes” that provide a court “no meaningful standard against which to judge the agency’s exercise of discretion.” Id. at 830,
Kucana reinforces HecklePs prescription that the narrow exception to judicial review of agency decisions must originate from Congress, not the agency itself. The majority of cases finding no jurisdiction to review denials of motions to reopen sua sponte on account of Heckler, including Barry and Harchenko, do so on the basis of standardless regulations. See, e.g., Luis v. INS,
Moreover, the regulation at issue in Rúcano, 8 C.F.R. § 1003.2, is the same one that the courts of appeals have held defines the BIA’s discretion over sua sponte reopening so broadly as to preclude review. In deeming such decisions unreviewable, the courts have pointed to the breadth of the first paragraph of the regulation:
(a) General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.
8 C.F.R. § 1003.2(a); see, e.g., Harchenko,
(c) Motion to reopen.
(1) A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subject to the hearing.
8 C.F.R. § 1003.2(c) (emphasis added). As the Supreme Court has noted regarding materially identical language in 8 C.F.R. § 3.2, the predecessor to § 1003.2, the regulation “is couched solely in negative terms; it requires that under certain circumstances a motion to reopen be denied, but does not specify the conditions under which it shall be granted.” INS v. Doherty,
Because Barry and Harchenko stand on the same tenuous foundation that an agency acting on its own can insulate its decisions from judicial review — a foundation to which Heckler lends no support and which has been undermined conclusively by Kucana — we believe those precedents ought to be reexamined by the en banc court.
Gor’s case provides a clear example of why review of BIA decisions is necessary. The IJ who conducted Gor’s hearing violated BIA regulations by neglecting to provide Gor with a list of free legal service-providers or confirm that Gor had received this list. See 8 C.F.R. § 1240.10(a). “It is an elemental principle of administrative law that agencies are bound to follow their own regulations.” Wilson v. Comm’r of Soc. Sec.,
In this case, the petitioner’s motion to reopen also was based in part on the claim that the IJ failed to develop the record sufficiently to establish that the petitioner’s convictions made him removable under 8 U.S.C. § 1227(a)(2)(E)(i). That claim deserves some consideration. Normally, courts use a categorical approach when interpreting a state criminal statute, focusing on the “ ‘intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation’.” Patel v. Ashcroft,
Although the statute under which the petitioner was found to be removable sets forth a clear definition for the term “domestic violence,” Congress has not defined the terms “child abuse,” “child neglect” or “child abandonment” in the Immigration and Nationality Act. And although the BIA often considers child support arrearage as a negative factor in the exercise of its discretion, see, e.g., In re Vicheth Sek a.k.a. Vicheth Ricky Sek,
to provide that an alien convicted of crimes of domestic violence, stalking, or child abuse is deportable. The crimes of rape and sexual abuse of a minor are elsewhere classified as aggravated felonies ..., thus making aliens convicted of those crimes deportable and ineligible for most forms of immigration benefits or relief from deportation.
H.R. Conf. Rep. No. 104-828, 104th Cong., 2d Sess. at 505-06 (Sept. 24, 1996); see In re Rodriguez-Rodñguez, 22 I. & N. Dec. 991, 994-95 (BIA 1999). “Congresses] intent, then, was to expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children.” In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 994. It is doubtful, however, that the definition
The BIA denied the motion to reopen, determining that the question whether the petitioner actually committed a removable offense was not worthy of consideration because it did not view the issue as “an exceptional situation.” App’x at 9. That conclusion is difficult to accept. The motion to reopen raised a basic question whether the petitioner had committed an offense that provides a legal basis for removal; removal of a lawful permanent resident absent a statutory basis plainly would amount to an exceptional circumstance.
III.
Gor’s case is a textbook example of the propriety — and the necessity — of judicial review of agency decisions. See Bowen v. Massachusetts,
However, for the reasons stated, we GRANT the government’s motion to dismiss the petition for review for want of jurisdiction.
Concurrence Opinion
concurring.
I concur with the lead opinion’s conclusion that we do not have jurisdiction to review either the original decision of the Board of Immigration Appeals or their decision not to reopen proceedings sua sponte, and that Petitioner’s appeal must be dismissed. I write separately to contest the notion set forth in the lead opinion that “the Supreme Court’s recent decision in Kucana v. Holder, — U.S. -,
The attempts of the lead opinion to make this case look like Kucana are creative but, ultimately, unconvincing. This case is fundamentally different from Kucana for two vitally important and, in my opinion, obvious reasons.
First, unlike the relevant arguments in Kucana — and unlike the lead opinion’s characterization of the government’s arguments here — the government here does not base its jurisdictional arguments on the text of 8 U.S.C. § 1252(a)(2)(B)(ii), which the lead opinion concedes was the basis for the Kucana decision. Lead Op. at 186-87. Instead, the government argues only that “[t]his Court lacks jurisdiction to review the Board’s refusal to sua sponte reopen because such determinations are committed to the Board’s unfettered discretion.” While the government made a nod to the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Lead Op. at 187, the government’s analysis relies entirely on our relevant case law, Barry v. Mukasey,
Briefing in this case was completed prior to the Supreme Court’s decision in Kucana, and we had previously held that § 1252(a)(2)(B)(ii) proscribed judicial review of BIA denials of motions to reopen. Ghazali v. Holder,
The second reason why this case differs from Kucana is the fact that there is a world of difference between the immigrant’s statutory right to file a motion to reopen, which was at issue in Kucana, and the discretionary right of the BIA — a right neither granted by nor addressed by Congress — to reopen sua sponte. The Kucana Court recognized this difference when it expressly declined to express any opinion “on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte." Kucana,
The Kucana Court held that the text of § 1252 barred judicial review “only when Congress itself set out the Attorney General’s discretionary authority in the statute.” Id. at 837 n. 13. Any attempts to proscribe judicial review by regulation only, including 8 C.F.R. § 1003.2(a), were invalid. “Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified.” Kucana,
The Kucana Court was faced with: (1) an express statutory right to file a motion to reopen proceedings; and (2) agency action that attempted to declare BIA responses to an immigrant’s exercise of that right off-limits to judicial review. The Court described the motion to reopen as “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Id. at 834 (quoting Dada v. Mukasey,
The power of the BIA to reopen sua sponte arises only from its own regulations. Congress has taken no steps to establish an individual right applicable to Gor, and without Congressional action to establish a right, the firm requirement that only Congress may remove jurisdiction simply does not exist. No one has argued that the BIA was required to give itself the power to reopen proceedings sua sponte in the event it should decide that extraordinary circumstances warrant it, but the lead opinion concludes that once an agency determines that it will, on occasion, bend the rules in helpful ways, every person who might benefit from a bending of the rules has the right to challenge the agency’s decision not to do so.
Harchenko and Barry remain good law because they were premised on the well-established principle that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Harchenko,
As other courts have noted, the discretion permitted by [8 C.F.R. § 1003.2(a) ] is “so wide that even if the party moving has made out a prima facie case for relief’, the BIA can deny a motion to reopen a deportation order. No language in the provision requires the BIA to reopen a deportation proceeding under any set of particular circumstances. Instead, the provision merely provides the BIA the discretion to reopen immigration proceedings as it sees fit.
Id. (citation omitted). The Harchenko and Barry panels concluded, as has nearly every other Circuit to consider the question, that the BIA’s exercise of its sua sponte authority was not reviewable because there was simply “no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe,
The statute governing motions to reopen speaks only to motions filed by a party; it does not establish any standard to guide the agency’s discretion whether to reopen on its own motion. The regulation establishing the BIA’s authority to reopen sua sponte was promulgated pursuant to a general grant of regulatory authority that sets no standards for this decision. The regulation itself, 8 C.F.R. § 1003.2(a), provides no guidance as to the BIA’s appropriate course of action, sets forth no factors for the BIA to consider in deciding whether to reopen sua sponte, places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.
Tamenut v. Mukasey,
Because I believe this case differs fundamentally from Kucana, I believe that our prior holdings in Barry and Harchen
Notes
. From a policy perspective, the lead opinion seems perfectly designed to assure that agencies will never again be willing to bend the rules in order to help those they are empowered to help.
Concurrence Opinion
concurring in part and concurring in the judgment.
I agree that we lack jurisdiction to review the original decision of the Board of Immigration Appeals (“BIA”) and that this court’s precedent blocks review of the BIA’s decision not to reopen sua sponte Gor’s immigration proceedings. I write separately to explain why I believe Kucana v. Holder, — U.S.-,
The Government conflates two potential jurisdictional obstacles to appellate review: the jurisdictional bar enacted by § 1252(a)(2)(B)(ii) and the purported absence of meaningful standards against which to evaluate BIA decisions not to reopen proceedings sua sponte. In its brief, the Government argues that the statutory bar encompasses BIA decisions not to reopen immigration proceedings sua sponte, citing in support our decisions in Barry v. Mukasey,
While the Supreme Court in Kucana expressly addressed only whether § 1252(a) (2) (B) (ii) bars appellate review of BIA decisions to deny timely motions to reopen and disclaimed expressing any opinion on whether the courts may review BIA decisions not to reopen removal proceedings sua sponte, see Kucana,
Moreover, the outcome of Kucana casts implicit but considerable doubt on the continued validity of Barry and Harchenko. As the lead opinion recognizes, the regulation at issue in Kucana, 8 C.F.R. § 1003.2, is the same one that we and other circuits have held defines the BIA’s discretion over sua sponte reopening so broadly as to preclude review. Yet Kucana held — the BIA’s equally unfettered discretion to deny motions to reopen notwithstanding— that the appellate courts retain jurisdiction to review such decisions, without any suggestion that their review might be impeded by a dearth of meaningful standards to apply.
This is not to say that the standard and scope of review we apply should be the
In this ease, the BIA’s decision declining to reopen proceedings did not address the extraordinary circumstances of Tushar Gor’s hearing, instead stating only that the claims Gor raises could have been presented on appeal. Thus, on the strength of a single sentence, Gor is now to be deported from the United States — the country in which he has lived since the age of four— to India — a country that he has visited three times for a total period of less than three months — despite the IJ’s apparent violation of his due process rights and the colorable legal arguments that his deportation is contrary to law. Yet we are barred from even considering whether the BIA’s cursory dismissal of Gor’s claims was adequate in light of these circumstances and the reasonable possibility that Gor’s ability to retain counsel and present his arguments on appeal also was impeded by the IJ’s failure to provide a list of free legal-service providers. Given Kucana’s implicit recognition that meaningful standards of review exist against which to evaluate BIA decisions made pursuant to 8 C.F.R. § 1003.2, I can see no good reason why we should not be able to assess whether the BIA appropriately exercised its authority here. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe,
Our sister courts have recognized that, following the Attorney General’s 2002 streamlining reforms — which cut the number of BIA members from twenty-three to eleven and allowed single-member review of most appeals — board members must review an enormous number of deportation cases, resulting in errors of disturbing magnitude and frequency. See, e.g., Kadia v. Gonzales,
. Chief Judge Batchelder's concurring opinion dismisses the view that the Government relies on both § 1252(a)(2)(B)(ii) and our precedent as a troubling and deliberate mischaracterization of the Government's argument. The opinion argues that the Government does not rely on § 1252(a)(2)(B)(ii) nor mention Ghazali v. Holder,
. The Court noted that "any lingering doubt" regarding this reading of § 1252(a)(2)(B)(ii) was dispelled by "the presumption favoring judicial review of administrative action” absent "clear and convincing evidence" to the contrary. Kucana,
. While two Courts of Appeals have noted that 8 C.F.R. § 1003.2(a) is promulgated pursuant to 8 U.S.C. § 1103, see Lenis v. U.S. Attorney Gen.,
. The Ninth Circuit has pointed to the limitations on motions to reopen in 8 U.S.C. § 1229a(c)(7) as further constraining the BIA’s discretion. See Ekimian v. I.N.S.,
. Indeed, several of our sister courts have suggested — even while employing language as sweeping as that in Barry and Harchenko— that they retain jurisdiction to review constitutional challenges to BIA refusals to reopen proceedings sua sponte. See Tamenut,