Kap Sun Bukta v. U.S. Attorney GeneralKap Sun Bukta v. U.S. Attorney General
Kap Sun Butka petitions for review of the Board of Immigration Appeals’ (“BIA“) order denying her motion to sua sponte reopen her removal proceedings. The government filed a motion to dismiss Butka‘s petition for lack of jurisdiction and we previously ordered the government‘s motion to be carried with the case. We now grant the government‘s motion and dismiss Butka‘s petition for lack of juris-diction.
I. 2009 REMOVAL ORDER
On September 6, 2007, the Department of Homeland Security (“DHS“) issued But-ka, a native and citizen of South Korea, a notice to appear (“NTA“). The NTA in-cluded the following factual allegations: (1) that Butka had overstayed her six-month nonimmigrant visitor‘s visa, which was is-sued in 1981; and (2) that Butka had a 1977 conviction from the Seoul Criminal District Court in Seoul, South Korea, for possession of 105 grams of marijuana, in violation of the Management Law for the Hemp and the Management Law of the Habitual Narcotic Drug. The NTA charged that Butka was removable under Immigration and Nationality Act (“INA“)
Butka responded, in January 2008, with a counseled written pleading admitting the allegations in the NTA and conceding re-movability. In the same pleading, she re-quested relief from removal in the form of adjustment of status, pursuant to INA
At her master calendar hearing in De-cember 2008, however, DHS served Butka with a Form I-261, “Additional Charge[] of Inadmissibility/Deportability.” The form stated that, “in lieu of [the charge] set forth in the original Notice to Appear,” DHS was alleging that Butka overstayed her visa without authorization, rendering her removable under INA
Butka requested more time to answer the new charge, and the immigration judge (“IJ“) set a deadline for her to provide a written response and identify and brief her eligibility for any forms of relief. When Butka‘s counsel missed the deadline to re-spond, the government filed a motion for a removal order, claiming that Butka had abandoned her requests for relief and that, in any event, she was ineligible for any form of relief other than voluntary depar-ture.
On April 16, 2009, the IJ issued an order based on the existing record and Butka‘s prior requests for a waiver of inadmissibili-ty and adjustment of status. The IJ found Butka removable by clear and convincing evidence. The IJ also concluded that Butka was ineligible for adjustment of status due to her drug conviction, and that the convic-tion could not be waived under INA
II. 2010 BIA DECISION
Butka appealed to the BIA, arguing that the IJ erred by (1) denying a waiver of inadmissibility, (2) denying adjustment of status, and (3) ordering her removed with-out holding a hearing or giving her an opportunity to seek voluntary departure as an alternative form of relief. Notably, But-ka did not deny that she had a drug con-viction or argue that her conviction in-volved 30 grams or less of marijuana. The government responded with a motion for summary affirmance.
On August 10, 2010, the BIA affirmed Butka‘s removal order for the same rea-sons described in the IJ‘s order and dis-missed her appeal. The BIA explained that Butka was ineligible for a waiver of inad-missibility under INA
III. 2011 DENIAL OF PETITION FOR REVIEW
Butka filed a petition for review in this Court. In May 2011, this Court concluded that it had jurisdiction to review only But-ka‘s constitutional arguments and issues of law. Butka v. U.S. Att‘y Gen., 427 Fed. Appx. 819, 822 (11th Cir. 2011) (unpub-lished). It denied Butka‘s petition for re-view, holding that “the IJ did not violate Butka‘s right to due process by issuing a removal order without holding a merits hearing,” as the “documentary evidence clearly established” that Butka was not eligiblе for a waiver or adjustment of sta-tus because her drug conviction “involved more than 30 grams of marijuana.” Id. at 823. This Court stated that Butka “admit-ted” that she had a prior conviction for possession of 105 grams of marijuana, so holding a hearing would not have changed the outcome of her case. Id. Additionally, this Court held that Butka had “a suffi-cient opportunity to apply for voluntary departure,” and that Butka had not made out an equitablе estoppel claim based on the government‘s initial decision to admit her with a drug conviction. Id. at 822-23.
IV. 2015 MOTION TO REOPEN
The record is silent from May 26, 2011, when this Court denied Butka‘s petition for review, until March 2, 2015, when But-ka filed the instant motion to reopen her removal proceedings. Butka‘s 2015 motion sought reopening pursuant to the BIA‘s sua sponte authority under
To support her claim that she was eligi-ble for adjustment of status and had an exceptional case, Butka argued that the original NTA erroneously charged that she had a 1977 conviction for possession of 105 grams of marijuana. While Butka had pre-viously admitted to that specific allegation in the NTA, Butka‘s motion to reopen now claimed that she had two “concurrent” South Korean convictions—(a) one for a December 1976 possession of 100 grams of marijuana, in violation of the Habitual Drug Control Act, and (b) one for a Janu-ary 1977 distribution of 5 grams of mari-juana, in violation of the Cannabis Control Act.2 Butka attached a translated copy of her criminal judgment to support her claim. There is only one criminal judg-ment, dated March 17, 1977, with one case number, “77 Go Hap 70.” Butka argues, however, that a review of that judgment shows she was charged with a December 1976 possession of 100 grams and a Janu-ary 1977 distribution of 5 grams and, therefore, she has two “concurrent crimes” in that one case.
As to her crime of possession of 100 grams of marijuana, Butka argued that the Habitual Drug Control Act was overbroad, and therefore that conviction was not cate-gorically a controlled substance offense un-der the INA. As such, it did not render her inadmissible.
As to her crime of conviction for distrib-uting 5 grams of marijuana, Butka con-tended that, under intervening Supreme Court and BIA precedent, the crime could be waived pursuant to INA
Alternatively, Butka asserted that her case should be transferred to her current place of residence, which was within the Ninth Circuit, and argued that under Ninth Circuit law her drug convictions would be considered expunged. Therefore, should her case be reopened, Butka main-tained that she would be eligible for relief under one or more of these theories.
On April 3, 2015, the BIA denied But-ka‘s motion to reopen. The BIA deter-mined that Butka did not present an “ex-ceptional situation to justify reopening sua sponte,” and it denied the motion as time-barred. The BIA reiterated that Butka was ineligible for a waiver of inadmissibili-ty for the reasons discussed in its prior opinion. It appeared to rely on Butka‘s previous admission to the original NTA that she had a 1977 conviction for posses-sion of 105 grams of marijuana, and did not address her claims that she had two separate crimes of conviction, although in the one 1977 criminal judgment.
Because the BIA‘s order was brief, we recite it in full here:
This matter was before the Board on August 10, 2010, when we dismissed the respondent‘s appeal from the Immigra-tion Judge‘s decision determining that she is ineligible for a waiver of inadmis-sibility under section 212(h) of the Immi-
gration and Nationality Act, 8 U.S.C. § 1182(h) . The respondent filed the present motion to reopen proceedings on March 3, 2015. The motion is untimely and the respondent requests reopening under the Board‘s sua sponte authority. See8 C.F.R. § 1003.2(a) .For reasons discussed in the Board‘s prior decision, the respondent is not eli-gible for a waiver of inadmissibility due to her conviction of a controlled sub-stance violation in which some 105 grams of hemp were confiscated from her. She could not show that her offense did not involve more than simple posses-sion of 30 grams or less of marijuana, and we are not persuaded that the re-spondent‘s various arguments asserted in her motion could lead to a different result. See Matter of Davey, 26 I. & N. Dec. 37, 39 (BIA 2012) (explaining that the exception is “exceedingly narrow and fact-specific” and refers to a “specif-ic type of conduct (possession for one‘s own use) committed on a specific num-ber of occasions (a ‘single’ offense) and involving a specific quantity (30 grams or less) of a specific substance (marijua-na)“).
Although the respondent may present a sympathetic case, she has not estab-lished that she is eligible for any relief within the jurisdiction of the Board. There is no exceptional situation to justi-fy reopening sua sponte. The motion to reopen is denied as time-barred.
V. 2015 PETITION FOR REVIEW AND MOTION TO DISMISS
In May 2015, Butka filed a timely peti-tion for review in this Court. The govern-ment responded with a motion to dismiss for lack of appellate jurisdiction, citing Lenis v. U.S. Attorney General, 525 F.3d 1291 (11th Cir. 2008).
On October 16, 2015, after Butka replied to the motion, this Court issued an order carrying the government‘s motion to dismiss with the case. The parties have now filed merits briefs addressing the BIA‘s decision and reasserting their argu-ments concerning this Court‘s jurisdiction. The parties debate whether Butka can use a motion to reopеn sua sponte to (1) with-draw her earlier concession from January 20083 that she had a 1977 conviction in South Korea for possession of 105 grams of marijuana; (2) re-litigate and obtain de novo review of the BIA‘s 2010 decision that she was ineligible for adjustment of status due to that 1977 conviction; and (3) submit new evidence and arguments in 2015 that were available in her original removal pro-ceedings, her first BIA review, and her first petition for review before this Court. The government stresses that Butka‘s re-quest to reopen is based on chаnges in the facts, not on changes in the law. We need not reach and decide all these issues be-cause we conclude we lack jurisdiction over Butka‘s petition for review.4
VI. DISCUSSION
To understand Butka‘s jurisdictional ar-guments, we describe the differences be-tween the BIA‘s statutory and sua sponte authority to reopen immigration proceed-ings. We then detail the relevant case law addressing this Court‘s jurisdiction to re-view the BIA‘s denial of motions fоr sua sponte reopening. In the final section, we explain why we do not have jurisdiction over Butka‘s petition for review.
A. Statutory Reopening
Under the INA, an alien may file one “statutory” motion to reopen her re-moval proceedings, and, generally, the mo-tion must be filed within 90 days of the date of entry of the administratively final order of removal. INA
Butka filed hеr March 2015 motion to reopen over four years after the BIA‘s August 2010 order of removal. While But-ka‘s 2015 motion requested only sua sponte reopening, the BIA addressed stat-utory reopening (in addition to sua sponte reopening) and found Butka‘s 2015 motion to be time-barred. On appeal, Butka does not argue that the BIA abused its discre-tion in declining to exercise its statutory power to reopen her removal proceedings. She petitions for review of only the Board‘s discretionary decision not to exer-cise its sua sponte authority to reopen.
B. Sua Sponte Reopening
The BIA has the authority to re-open removal proceedings sua sponte at any time.
To meet the exceptional circum-stances standard, the alien must show that there is “a substantial likelihood that the result in [her] case would be changed if reopening is granted.” In re Beckford, 22 I. & N. Dec. 1216, 1219 (BIA 2000). A fundamental change in the law may satisfy this condition. See Matter of X-G-W-, 22 I. & N. Dec. 71, 72-73 (BIA 1998); see also In re G—D—, 22 I. & N. Dec. 1132, 1135 (BIA 1999). Indeed, Butka relied pri-marily on alleged changes in the law in her motion for sua sponte reopening. The threshold issue, however, is whether we have jurisdiction to review Butka‘s chal-lenges.
C. Lenis—No Jurisdiction Over Deni-als of Sua Sponte Reopening
We directly answered this question in Lenis. This Court, in Lenis, squarely held that it lacked jurisdiction to review a BIA decision denying a petitioner‘s motion for sua sponte reopening. Lenis, 525 F.3d at 1292, 1294. The petitioner, Clara Ines Len-is, requested sua sponte reopening based on an intervening change in the law. See id. at 1292. The BIA denied her motion. See id.
Before this Court, Lenis argued “that the BIA abused its discretion in denying [her] request to use its sua sponte powers to reopen the underlying proceedings es-sentially bеcause the agency had issued a precedential decision changing the mean-ing of the term ‘particular social group’ under the asylum laws.” Id. Lenis thus raised a legal claim concerning her eligibil-ity for asylum under the Agency‘s new interpretation of the term “particular so-cial group.” See id.
In reviewing Lenis‘s petition for review, this Court explained that, “under the Ad-ministrative Procedure Act, judicial review is not available when ‘agenсy action is committed to agency discretion by law.‘” Id. at 1293 (quoting
At the end of Lenis, this Court, howev-er, expressly left open the question of whether “an appellate court may have ju-risdiction over constitutional claims related to the BIA‘s decision not to exercise its sua sponte power.” Id. at 1294 n. 7 (em-phasis added). The Court observed that it had no occasion to answer that question because Lenis did not raise any constitu-tional claims in her petition for review. Id. That question still remains open.
Butka argues that Lenis does not con-trol her case because it involved only “a pure sua sponte discretionary denial,” whereas her case contains a question of law in addition to a prayer for discretion-ary relief. She also claims that Mata v. Lynch, 576 U.S. —, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015), undermines Lenis. The government maintains that Lenis controls Butka‘s case, that Mata does not under-mine Lenis, and that Lenis is binding prec-edent. We discuss Mata and then why Lenis controls this particular case.
D. Mata v. Lynch
Subsequent to this Court‘s decision in Lenis, the U.S. Supreme Court decided Mata v. Lynch, 576 U.S. —, 135 S.Ct. 2150. Butka claims that Mata partially ab-rogated Lenis and mandated that federal courts of appeal assert jurisdiction over legal claims accompanying requests for sua sponte reopening.
In Mata, Petitioner Noel Reyes Mata filed an untimely motion to reopen his removal proceedings, asking the BIA to equitably toll the filing deadline based on his counsel‘s ineffectiveness, and grant re-opening under its statutory authority. 576 U.S. at —, 135 S.Ct. at 2153. The BIA denied equitable tolling and, therefore, de-nied Mata‘s motion as time-barred. Id. It also stated that Mata‘s case was not one that warranted sua sponte reopening. Id.
Mata filed a petition for review in the Fifth Circuit Court of Appeals, arguing that the BIA should have granted him equitable tolling. Id. at —, 135 S.Ct. at 2154. The Fifth Circuit dismissed the peti-tion for lack of jurisdiction, stating that it construed petitioners’ requests to the BIA for equitable tolling basеd on ineffective assistance of counsel as motions for sua sponte reopening, and it did not have juris-diction to review the BIA‘s refusal to sua sponte reopen cases. Id.
The Supreme Court reversed the Fifth Circuit, explaining that circuit courts have jurisdiction to review the denial of statu-tory motions to reopen, and “that juris-diction remains unchanged if the Board, in addition to denying the alien‘s statuto-
The Supreme Court ordered the Fifth Circuit to assert jurisdiction over the BIA‘s denial of equitable tolling and statu-tory reopening. Id. at —, 135 S.Ct. at 2156-57. In doing so, it resolved a circuit split, as every circuit court but the Fifth had already decided that it had jurisdiction to review the BIA‘s denial of equitable tolling in a statutory reopening case. Id. at —, 135 S.Ct. at 2154; see Avila-Santoyo, 713 F.3d 1357 (reviewing the BIA‘s denial of equitable tolling in a statutory reopen-ing case).
E. Synthesizing Lenis and Mata
Butka asserts that Mata supports a bi-furcated approach to sua sponte reopening cases. Butka explains that, under this ap-proach, courts retain jurisdiction to review the legal questions presented in a petition-er‘s motion to sua sponte reopen.6 If the court concludes that the BIA made a legal error, it must remаnd the case for the BIA to reconsider whether to exercise its sua sponte authority in light of the correct legal framework. However, the court of appeals remains unable to reach the ulti-mate question of whether the BIA abused its discretion by denying reopening.
Contrary to Butka‘s characterization, the Supreme Court in Mata did not in-struct federal circuit courts to assert ju-risdiction over legal claims related to or underlying requests for sua sponte re-opening. The Mata Court reached no hold-ing about whether courts have jurisdiction to review the BIA‘s decision concerning whether to sua sponte reopen a case. See Mata, 576 U.S. at —, 135 S.Ct. at 2155. The Supreme Court clarified only that courts must exercise jurisdiction over stat-utory reopening cases and requests for equitable tolling accompanying a statutory motion to reopen. See id. Therefore, Mata had no effect on our precedent in Lenis, which held unambiguously that this Court does not have jurisdiction to review the BIA‘s denial of a motion to sua sponte reopen proceedings, with the possible ex-ception of constitutional issues. See Lenis, 525 F.3d at 1293-94 & n. 7.
Lenis, furthermore, forecloses Butka‘s argument that this Court could review the legal issues presented in her motion to
We are compelled to reach the same conclusion here. As Butka has not raised any constitutional claims, we lack jurisdiction to review the BIA‘s denial of her motion for sua sponte reopening.7 Thus, we must reject Butka‘s arguments and grant the government‘s motion to dis-miss.
IV. CONCLUSION
For all the foregoing rеasons, we GRANT the government‘s motion to dis-miss Butka‘s petition for review for lack of jurisdiction. Butka‘s petition for review is hereby DISMISSED.
Notes
In contrast to these cases, our pre-Mata law is Lenis, which concluded that this Court did not have jurisdiction to review the BIA‘s deni-al of a motion to sua sponte reopen immigra-tion proceedings, with the possible exception of constitutional issues. Lenis, 525 F.3d at 1294 & n. 7.