Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Ek Hong Djie; Yohana Dewi Mulyani v. Garland (June 29, 2022) No. 20-60448 are as follows:

 

Case History

In 2000, an Immigration Judge ordered the Petitioners removed from the United States in absentia (i.e. legalese meaning in the absence of the individual who is subject to removal proceedings).

 

In 2007, the Petitioners filed a motion to reopen their removal proceedings.

 

An Immigration Judge denied the motion to reopen.

 

The Board of Immigration Appeals (“BIA”) dismissed petitioners’ appeal from the denial of the Motion to Reopen.

 

The Petitioners filed a petition for review of the BIA’s dismissal.

 

The Fifth Circuit Court of Appeal denied the petition in part and dismissed it in part.

 

In 2018, petitioners filed a second motion to reopen with the BIA.

 

The BIA denied the second motion to reopen.

 

The Petitioners again filed a petition for review of the BIA’s denial of their second motion to reopen.

 

 

Facts

• Petitioners are a married couple who are ethnically Chinese Christians and natives of Indonesia.
• In 1998, the Petitioners entered the United States as temporary, non-immigrants.
• The Petitioners then remained longer in the United States than permitted by their temporary authorization.
• In 2000, the Department of Homeland Security (“DHS”) served petitioners with Notices to Appear (collectively, “the NTA”), charging that they are deportable and subject to removal from the United States under section 237(a)(1)(C)(i) of the Immigration and Nationality Act, as amended (“the Act”) as aliens who were admitted as a nonimmigrants and who failed to maintain the nonimmigrant status in which they were admitted or to which it had changed, or to comply with the conditions of any such status.
• The NTA did not contain the time and place of the initial removal hearing which the DHS supplied subsequently to the Petitioners’ attorney.
• On May 8, 2000, when petitioners failed to appear at the removal hearing, an Immigration Judge ordered them removed in absentia.  However, the Government never removed them.
• In 2007, petitioners filed a motion to reopen their removal proceedings, arguing the NTA was inadequate.
• An Immigration Judge denied the motion to reopen.
• The BIA dismissed petitioners’ appeal from the Immigration Judge’s denial of the motion to reopen.
• The Petitioners filed a petition for review with the Fifth Circuit Court of Appeal which was denied in part and dismissed in part in 2009.
• In 2018, petitioners filed a second motion to reopen with the BIA seeking to apply for asylum under section 208 of the Act and cancellation of removal under section 240A(b) of the Act.
• Because their second motion would ordinarily be time barred under section 240(c)(7)(C)(i) of the Act which requires motions to reopen to be filed within 90 days of the entry of a removal order, the Petitioners provided evidence in support of their motion to demonstrate that country conditions in Indonesia had materially changed between 2000 (the time of the removal order) and 2018 (the time of the motion to reopen).  See section 240(c)(7)(C)(ii) of the Act which provides an exception to the 90-day time bar if the reason for the motion to reopen is to apply for asylum based on changed country conditions in the country of nationality or the country to which removal had been ordered.
• The BIA denied the Petitioners’ second motion to reopen by concluding that:  1) with regard to asylum, the petitioners had not demonstrated changed country conditions. Therefore, the time bar exception under section 240(c)(7)(C)(ii) of the Act did not apply; and even if the motion was not time barred, the Petitioners had failed to make a prima facie showing of entitlement to asylum relief.  2) With regard to cancellation of removal, although the original NTA was insufficient under Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding that an NTA that did not specify the time and date of the initial removal hearing does not trigger the stop time rule under section 240A(d)(1) of the Act relating to the 10-year physical presence requirement for cancellation of removal) the Government had cured the defect by subsequently notifying the Petitioners of the time and date of removal proceedings.
• The BIA also denied the Petitioners’ request for the exercise sua sponte (legalese meaning by spontaneous self-urging or recommendation) authority to reopen removal proceedings.

 

Held

Petition for Review DENIED

 

Rationale

In Ek Hong Djie; Yohana Dewi Mulyani v. Garland (June 29, 2022) No. 20-60448, the Fifth Circuit Court of Appeal organized its rationale around three issues: 

1. the applicability of the section 240(c)(7)(C)(ii) of the Act changed-country-conditions exception to the 90-day time bar and one-motion number limitation relating to motions to reopen, as a matter of law;
2. the proposed reliance on 8 C.F.R. § 1003.2(c)(3) to extend the changed-country-conditions statutory 90-day time bar exception to the one motion number limitation relating to motions to reopen; and
3. the appropriate disposition of a request for remand upon the emergence of a new or improved opportunity to apply for statutory relief outside the scope of the petition for review.

 The Fifth Circuit Court of Appeal reasoned as follows:

 

Statutory Time and Number Bars

• The time bar appears in section 240(c)(7)(C)(i) of the Act as follows: “Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.”
• The exception to the time bar appears in the next paragraph:

There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under [8 U.S.C. §§ 1158 or 1251(b)(3)] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

• Both parties correctly agree that if the Petitioners can show the BIA was wrong about changed country conditions, then their motion to reopen is not time barred.
• The number bar which allows only one motion to reopen is an impediment to the viability of a motion to reopen that is separate and apart from the time bar.  See section 240(c)(7)(A) of the Act.
• The only exception to the number bar applies to battered spouses, children and parents under section 240(c)(7)(C)(iv) of the Act, and the Petitioners agree that not qualify for this single statutory exception to the number bar.
• Therefore, the Petitioners’ motion to reopen is number barred.

 

Number Bar Exception Based on Regulation

8 C.F.R. § 1003.2(c)

• Title 8 regulations provide an extra-statutory exception to the number bar relating to motions to reopen.
• Pursuant to 8 C.F.R. § 1003.2(c)(2):

Except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or exclusion proceedings[,] . . . and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.  [emphasis added]

Thus, Title 8 regulations set forth the same time and number bars found in section 240(c)(7) of the Act.

• However, 8 C.F.R. § 1003.2(c)(3) provides:

The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:

. . .

(ii) To apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.  [emphasis added]

• The regulation, in contrast to section 240(c)(7) of the Act, purports to apply the changed-country-conditions exception to both time and number bars.
• To the extent a regulation attempts to carve out an exception from a clear statutory requirement, the regulation is invalid.  See, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, at 86 (2002) (“A regulation cannot stand if it is arbitrary, capricious, or manifestly contrary to the statute.” (quotation omitted)); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, at 844 (1984); Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421, at 433 (5th Cir. 2021).
• In short, because 8 C.F.R. § 1003.2(c)(3) attempts to carve out an exception to the number bar in section 240(c)(7)(A) of the Act that conflicts with statutory authority, the regulation is invalid.

The Fifth Circuit Court of Appeal then explained why deference to agency regulations under Chevron does not apply and addressed three additional counter arguments raised by the parties:

 

Chevron Deference

According to Chevron, 467 U.S. at 844 “[R]egulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”.  See also Scialabba v. Cuellar De Osorio, 573 U.S. 41, at 57 (2014) (plurality op.) (“Under Chevron, the statute’s plain meaning controls, whatever the [agency] might have to say.”).  The whole thrust of 8 C.F.R. § 1003.2(c)(3) is to inject an exception into a statute that clearly omitted that very exception.

The Petitioners asserted that the appellate court should defer to the BIA’s interpretation of the statute and regulations under review in Matter of J-G-, 26 I. & N. Dec. 161, at 168–69 (BIA 2013) that, based on the silence of the statute relating to the number bar, the regulations that provide for a changed-country-condition exception to the number bar must control. 

The BIA’s decision in Matter of J-G-, however, is wrong.  The statute’s silence on further exceptions, far from licensing agency-made exceptions, implicitly rules them out.  Christensen v. Harris Cnty., 529 U.S. 576, at 583 (2000) (“When a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.”).

Finally, the absence of intent in the legislative history, relied upon in part in Matter of J-G- to alter the former agency practice of waiving both time and numerical bars to motions to reopen based on changed country conditions, is clearly superseded by statutory text to the contrary.

 

Counter Arguments

1. The Petitioners asserted that Congress’s decision to write an exception from the number bar “for battered spouses, children, and parents,” under section 240(c)(7)(C)(iv) of the Act, implies that Congress also must have wanted to create other, unwritten exceptions to the number bar.
   • • •  

• This argument obviously fails under Christensen, 529 U.S. at 583 (“When a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.”) because it is based on the exact opposite premise.

• This argument, like the first, attempts to use the existence of an exception in one place as evidence of an unwritten exception in another.
• Congress’s decision to include one exception in section 208 of the Act, coupled with its decision to omit a parallel exception in section 240 of the Act, suggests Congress wanted the one but not the other.

3. The Government asserted that it would be illogical and inconsistent with Congressional intent to allow asylum claims based on changed country conditions at any time not to recognize a number bar exception based on changed country conditions.

• The Government’s assertion is based on the premise that every time an alien qualifies for the time bar exception based on changed country conditions, he’ll run straight into the number bar and be stuck without recourse.
• This amounts to a surplusage argument (i.e. legalese referring to a rule of statutory construction that a law cannot be interpreted in a way that renders any statutory text to be surplusage or without meaning or application), but there is no surplusage.
• The Fifth Circuit Court of Appeal provided a hypothetical example of a how a motion to reopen could be untimely filed for the first time (i.e. without triggering the number bar) based on changed country conditions:  An alien is ordered removed.  10 years later country conditions change.  20 years later, based on changed country conditions, the alien files a motion to reopen for the first time.  Although time barred on its face, the motion to reopen might qualify for the time bar exception under section 240(c)(7)(C)(ii) of the Act.
• In short, section 240(c)(7) of the Act is not, as the petitioners would have it, out of “harmony” with other statutes.  Nor is what it says, as the Government would have it, “illogical” or superfluous.
• Thus, the number bar applies in the factual record under review.

 

Remand

The Petitioners requested that their cause be remanded to the BIA to reconsider their cancellation of removal claim in the light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)  (decided on April 29, 2021) in which the United States Supreme Court determined that service of an NTA that does not contain the time and place of the initial removal hearing does not trigger the stop time rule relating to the 10-year physical presence requirement under section 240A(d)(1) of the Act; and subsequent service of a notice of hearing or any other kind of notice containing the missing information (i.e. time and place of the initial hearing) cannot perfect or cure a deficient NTA.

• Assuming that the BIA erred by determining that the Petitioners are not eligible for cancellation of removal, the cause cannot be remanded for the following reasons:
  1. 1.  

1. The Petitioners’ motion to reopen remains number barred.  Reyes Mata v. Lynch, 576 U.S. 143, at 149–50 (2015) (“If the INA precludes [petitioners] from getting the relief [they] seek[], . . . the right course on appeal is to . . .  affirm the BIA’s decision not to reopen.”).
2. An appellate court cannot look past Congress’ number bar for fear that the BIA might have made a mistake (such as running afoul of Niz-Chavez).  If the BIA wants to reopen, it can do so whenever it wants.  See Matter of G-D-, 22 I. & N. Dec. 1132, at 1135 (BIA 1999).   However, an appellate court cannot instruct it to do so via a remand order in the face of an insuperable statutory obstacle.

 

Commentary

Immigration Judges dedicate significant amounts of time to adjudicating motions to reopen.  These motions are generally the equivalent of a motion for new trial in civil and criminal proceedings.  Thus, regulations regarding motions to reopen are framed negatively and authorize reopening only when minimum conditions are met.  INS v. Wang, 450 U.S. 139 (1981).  See also INS v. Abudu, 485 U.S. 94 (1988).

The requirements for motions to reopen hearings conducted in the respondent’s presence are as follows:

1)        The motion must be filed within 90 days of the date of the final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.

2)        The motion must state whether the validity of the order has been or is the subject of any judicial proceeding, and if so, the nature and date of the proceeding, the court in which the proceeding took place or is pending, and the result or status.

3)        The motion must state whether the subject of the order is also the subject of criminal proceedings and the current status of those proceedings.

4)        The motion must state the new facts that the moving party is seeking to establish.

5)        The motion must be accompanied by affidavits and other evidence.

6)        If the motion seeks consideration of an application for relief from removal the motion must be accompanied by the appropriate application and supporting documents, including a fee receipt for such application if required.

7)        The motion must establish that the evidence offered is material and was not available or could not have been discovered or presented at the last hearing.

8)        If the moving party is seeking consideration of any discretionary relief application the motion must establish that the right to apply for such relief was not fully explained by the Immigration Judge or that an opportunity to apply for such relief was not afforded during the previous removal proceedings, unless the relief sought is based on circumstances that occurred subsequent to the last hearing.

9)        If the moving party is seeking cancellation of removal for lawful permanent residents or for non-permanent residents under sections 240A(a) or 240A(b) of the Act, the motion must establish statutory eligibility for such relief before service of the NTA or before the commission of the offense that renders the moving party subject to removal.

10)      The motion must be accompanied by a fee receipt if a fee is required.

11)      The motion must be accompanied by a certificate of service on the opposing party.

See 8 C.F.R. § 1003.23(b)(1), (3) and § 1003.24(b)(1), (c)(2).

In the context of routine motion practice based on 8 C.F.R. § 1003.2(c)(3), before Ek Hong Djie; Yohana Dewi Mulyani v. Garland (June 29, 2022) No. 20-60448, an exception to time and number bars was achieved by filing a motion to reopen to apply for asylum under section 208 of the Act, withholding of removal under section 241(b)(3) of the Act, or withholding of removal under the Convention Against Torture based on changed circumstances in the country of nationality or the country to which removal has been ordered.  However, the changed circumstances must be material and not available or could not have been discovered or presented at the previous hearing.  See 8 C.F.R. § 1003.23(b)(4). 

Changes in an alien’s personal circumstances (e.g. the birth of children) in the United States will not, without more, justify a motion to reopen to pursue a successive application based on changed circumstances as described in section 208(a)(2)(D) of the Act.  See Wang v. Board of Immigration Appeals, 437 F.3d 270, at 273 (2nd Cir. 2006); Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007). 

The Fifth Circuit Court of Appeal, however, might consider a hybrid changed circumstances claim if significant change in personal circumstances can be linked to a change in country conditions:

Because Garcia has not been able to show changed country conditions on appeal, we do not reach the question of whether he would be able to present a “hybrid” changed conditions claim. See, e.g., Rodriguez v. Garland, 990 F.3d 1205, 1209-10 (9th Cir. 2021) (“[W]hile changes in personal circumstances may be relevant to a motion to reopen based on changed country conditions, a petitioner cannot succeed on such a motion that ‘relies solely on a change in personal circumstances,’ without also providing sufficient evidence of related changed country conditions.” (citing Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir. 2014))).

See Blas Eduardo Garcia v. Garland pp. 8, 9 note 3 (March 14, 2022) No. 19-60793.

The requirements of a motion to reopen and rescind an in absentia removal order are as follows:

1)        The motion must be filed within 180 days after the date of the removal order if the alien is seeking to demonstrate exceptional circumstances (defined under section 240(e)(1) of the Act) for failure to appear; or

2)        The motion may be filed without any time limit if the alien is seeking to demonstrate insufficient notice under section 239(a)(1) and (2) of the Act.

A motion to reopen a final deportation, exclusion or removal order that is filed subsequent to the 180-day or 90-day statutory deadlines (i.e. filed late) might benefit from equitable tolling or extension of the deadline if certain conditions are met.  See, for example, Avila-Santoyo v. Att’y Gen., 713 F.3d 1357, at 1364 n.4 (11th Cir. 2013) (equitable tolling of the 180-day deadline); Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016) (equitable tolling of the 90-day deadline). 

To be more precise, equitable tolling is warranted only if the proponent of the motion establishes (1) diligence in pursuit of the proponent’s rights, and (2) that some extraordinary circumstance stood in the proponent’s way and prevented timely filing.  Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016). 

In short, an Immigration Judge or the BIA will not reject a late filed motion to reopen/reconsider outside the statutory 180-day and 90-day deadlines and will consider the merits of such motion if it qualifies for equitable tolling. 

It seems fair to say, based on my experience, that many late motions to reopen/reconsider lie wrecked beneath the stormy seas of litigation after shattering on the rocks of the requirement to exercise diligence.  Don’t have great expectations to benefit from equitable tolling after waiting three or four or more years to file a motion to reopen/reconsider.  See, for example, Lavorski v. USINS, 232 F. 3d 124 (2nd Cir. 2000) (insufficient diligence found where the petitioner waited almost 2 years after his attorney’s disappearance to take action).

Finally, an Immigration Judge and the BIA can sua sponte (legalese meaning by spontaneous self-urging or recommendation) reconsider any order or disposition or reopen any proceeding that the respective decision maker issued or concluded.  See 8 C.F.R. §§ 1003.23(b) and 1003.2(a), respectively. 

The BIA has held that an alien who is seeking the favorable exercise of sua sponte authority must demonstrate the existence of an exceptional situation that warrants reopening.  Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000).  The BIA declared in Matter of G-D-, 22 I&N Dec. 1132, at 1133-1134 (BIA 1999) that: 

As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.

The exercise of sua sponte authority is purely discretionary.  Therefore, an appellate court might decline to review motion denials issued in the exercise of sua sponte authority.  Heckler v. Chaney, 470 U.S. 821, at 830 (1985) ("[R]eview 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.").  See, also, Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008); Anaya-Aguilar v. Holder, 683 F.3d 369, at 371-72 (7th Cir. 2012); Pllumi v. Attorney Gen. of the U.S., 642 F.3d 155, at 159-60 (3d Cir. 2011) (“If . . . the BIA declines to exercise its sua sponte authority . . . in a manner that does not indicate a misunderstanding of its authority, then that decision will be unreviewable.); Gor v. Holder, 607 F.3d 180, at 187-93 (6th Cir. 2010).  In Gor, the Sixth Circuit Court of Appeal panel reluctantly declined review of a sua sponte denial of a motion to reopen immigration proceedings and suggested that this jurisdictional issue should be revisited enbanc (i.e. by the all of the Sixth Circuit appellate justices together). 

The point of the matter is that attorneys and persons seeking to reopen immigration proceedings should not entirely rely on a motion for sua sponte reopening.

Hopefully, I have been able to answer some fundamental questions that surround motions to reopen.  Attempting to touch on every issue relating to motions to reopen would be an exhausting challenge and tedious to some.  What about stays of removal and motions to reconsider? 

Perhaps, out of concern for too heavily taxing the reader's time and patience, it is best to reserve further discussion of motions to reopen for another day.

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