14‐619‐ag Vela‐Estrada v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2015

(Argued: March 16, 2016 Decided: March 21, 2016)

Docket No. 14‐619‐ag

HENRY VELA‐ESTRADA, AKA Henry Vela,

Petitioner,

v.

LORETTA E. LYNCH, United States Attorney General,

Respondent.

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

Before: STRAUB, CHIN, and CARNEY, Circuit Judges. ______

Petition for review of a decision of the Board of Immigration

Appeals dismissing as untimely Petitionerʹs appeal from his order of removal.

PETITION GRANTED IN PART AND DISMISSED IN PART. ______ KEVIN S. SANTOS, SR., Santos Law Group, pc, Allentown, Pennsylvania, and Jose C. Campos, Law Office of Jose C. Campos, Esq., Bethlehem, Pennsylvania, for Petitioner.

PATRICIA E. BRUCKNER, Trial Attorney, John W. Blakeley, Assistant Director, Office of Immigration Litigation, Joyce R. Branda, Acting Assistant Attorney General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PER CURIAM:

Petitioner Henry Vela‐Estrada seeks review of a January 31, 2014

decision of the Board of Immigration Appeals (the ʺBIAʺ) declining to certify,

pursuant to

(c), his untimely appeal of the May 14, 2013 order of

removal of the Immigration Judge (ʺIJʺ). For the reasons set forth below, we

conclude that the decision not to certify an untimely appeal is committed to BIA

discretion and, accordingly, is not subject to judicial review. Because the BIA did

not address Vela‐Estradaʹs motion to reopen his removal proceedings, we

remand to the BIA for it to address the motion to reopen.

‐ 2 ‐ BACKGROUND

Vela‐Estrada, a native and citizen of Guatemala, was admitted to the

United States in 1989 as a lawful permanent resident. In 2005, he was convicted

in Pennsylvania of delivery of a controlled substance. In 2013, the Department of

Homeland Security instituted removal proceedings, charging Vela‐Estrada as

removable based on the narcotics conviction. The IJ found him removable as

charged, and ordered him removed to Guatemala. Vela‐Estrada was removed to

Guatemala on June 20, 2013.

Vela‐Estrada did not timely file a notice of appeal, but instead filed a

motion with the BIA requesting that it accept his late‐filed appeal, referencing an

attached exhibit, or alternatively that it certify the appeal pursuant to

(c), ʺdue to the exceptional circumstances directly resulting from [Vela‐

Estradaʹs] ineffective assistance of counsel.ʺ R. at 23. The attached exhibit was a

motion to reopen his removal proceedings. On January 31, 2014, the BIA found

Vela‐Estradaʹs appeal untimely and declined to accept the case on certification.

The BIA did not address Vela‐Estradaʹs motion to reopen in its January 31, 2014

decision. Vela‐Estrada timely petitioned this Court for review.

‐ 3 ‐ DISCUSSION

Section 1003.1(c) of Title 8 of the Code of Federal Regulations grants

the BIA authority to accept an untimely appeal by certification:

[T]he [BIA] may in any case arising under paragraph (b) of this section [defining the BIAʹs appellate jurisdiction] certify such case to the [BIA]. The [BIA] in its discretion may review any such case by certification without regard to the [notice] provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the [BIA] regarding the case . . . .

We have not previously addressed in a precedential decision

whether we have jurisdiction to consider the BIAʹs decision not to certify an

untimely appeal. In prior unpublished decisions, we have either concluded that

we lack jurisdiction to consider the BIAʹs certification decision, e.g., Maynard v.

BIA, 293 F. Appʹx 821, 822‐23 (2d Cir. 2008); Veizaj v. Mukasey, 291 F. Appʹx 405,

405‐06 (2d Cir. 2008); Islam v. Gonzales, 238 F. Appʹx 676, 678 (2d Cir. 2007), or

assumed hypothetical jurisdiction to review claims that were plainly without

merit, e.g., Gong Ping Chen v. Holder, 341 F. Appʹx 663, 664‐65 (2d Cir. 2009); Zhong

Guang Sun v. Mukasey, 270 F. Appʹx 83, 84 (2d Cir. 2008). In light of our recent

decision holding that avoiding jurisdictional questions by assuming hypothetical

jurisdiction is ʺprohibited in all but the narrowest of circumstances,ʺ Ortiz‐Franco

‐ 4 ‐ v. Holder,

(2d Cir. 2015), we consider the jurisdictional question

here and conclude, for the reasons discussed below, that we lack jurisdiction to

review the agencyʹs discretionary certification decision.

Under the Administrative Procedure Act, judicial review is expressly

foreclosed where ʺ(1) statutes preclude judicial review; or (2) agency action is

committed to agency discretion by law.ʺ

(a). The BIA derives its

discretionary authority to certify an untimely appeal from regulation, as opposed

to statute. Accordingly, our jurisdictional authority hinges on the applicability of

the second exception to judicial review: whether the action was committed to

agency discretion by law.

An administrative action is ʺcommitted to agency discretionʺ where

the governing law is ʺdrawn so that a court would have no meaningful standard

against which to judge the agencyʹs exercise of discretion.ʺ Heckler v. Chaney,

(1985); accord Lunney v. United States,

, 558‐60 (2d Cir.

2003) (court lacked jurisdiction to consider plaintiffʹs claim where there was no

statute or regulation that would limit agency discretion).

The plain language of the regulation here commits the certification

decision to BIA discretion.

(c) (ʺThe [BIA] in its discretion may

‐ 5 ‐ review any such case by certification . . . . ʺ (emphasis added)). Neither

(c) nor any other regulation or statute provides guidance on how this

discretion should be exercised. The BIA has merely stated that it will exercise

this power only in ʺexceptional circumstances.ʺ In re Liadov,

(B.I.A. 2006) (holding that ʺshort delays by overnight delivery servicesʺ are

not exceptional circumstances); see also Zhong Guang Sun v. DOJ,

(2d Cir. 2005) (ʺ[W]hile under normal circumstances the BIA cannot hear late‐

filed appeals, it may hear such appeals in unique or extraordinary

circumstances.ʺ). The BIA, however, has not elaborated on what ʺexceptional

circumstancesʺ would merit certification.

In light of the lack of meaningful guidance on how the BIAʹs

discretion should be applied, two circuits have held that the BIAʹs certification

decision is not subject to judicial review. See Liadov v. Mukasey,

(8th Cir. 2008) (certification decision committed to agency discretion by law

due to ʺ(1) the total absence of statutory standards, (2) the absence of meaningful

guidance for applying the ʹexceptional circumstancesʹ standard in the regulation

. . . and (3) the absence of a ʹsettled course of adjudicationʹ that could establish a

meaningful standardʺ (quoting Tamenut v. Mukasey,

, 1004‐05 (8th

‐ 6 ‐ Cir. 2008)); Mahamat v. Gonzales,

(10th Cir. 2005) (certification

decision ʺbeyond reviewʺ because of lack of ʺstandards to judge the BIAʹs

exercise of discretionʺ). We agree with their analyses and conclude that the

decision not to certify an untimely appeal is committed to agency discretion by

law.1 This decision is consistent with our prior conclusion that we lack

jurisdiction to review the BIAʹs decision not to reopen removal proceedings sua

sponte, another action committed to BIA discretion by regulation. See Ali v.

Gonzales,

, 517‐18 (2d Cir. 2006); see also

(a).

Vela‐Estrada contends that Kucana v. Holder requires us to review the

BIAʹs certification decision because there the Supreme Court held that judicial

review of agency determinations is not precluded under

(a)(2)(B)(ii) where the determination is made discretionary by regulation.

, 245‐47 (2010). This argument is unavailing as the Supreme Court

expressly declined to address the effect of § 701(a)(2) of the Administrative

1 We note, however, that review is not entirely foreclosed. Where, in denying certification, the BIA misperceives the law or misunderstands its own jurisdiction, it is appropriate to remand to allow the BIA to consider its authority. See Zhong Guang Sun,

; cf. Mahmood v. Holder,

(2d Cir. 2009). But where, as is the case here, the BIA recognizes its authority to self‐certify, but declines to do so based on a lack of exceptional circumstances, that decision is not subject to judicial review.

‐ 7 ‐ Procedure Act on the reviewability of BIA actions declared discretionary by

regulation.

n.18 (noting that it ʺexpress[ed] no opinion on

whether federal courts may review the [BIAʹs] decision not to reopen removal

proceedings sua sponte,ʺ a decision made discretionary by regulation, and

recognizing many appellate courts have held that ʺsua sponte reopening is

committed to agency discretion by lawʺ (citing

(a)(2)); see also Mata

v. Lynch,

(2015) (recognizing that Courts of Appeals have

held they generally lack authority to review the BIAʹs discretionary sua sponte

reopening decision).

After Kucana, we have reiterated that the BIAʹs decision not to

reopen proceedings sua sponte is unreviewable. See Duarte‐Ceri v. Holder,

(2d Cir. 2010). Similarly, Kucana does not affect our conclusion here that

the certification decision under

(c) is committed to agency

discretion and unreviewable. Accordingly, Vela‐Estradaʹs petition for review of

the certification decision is dismissed.

As for Vela‐Estradaʹs motion to reopen, which was attached as an

exhibit, it is unclear from the BIAʹs decision whether it considered that motion.

Accordingly, we remand for the BIA to address the motion to reopen in the first

‐ 8 ‐ instance. Cf. Zhao v. DOJ,

, 97 (2d Cir. 2001) (explaining that ʺ[f]ailure

to explain a decision adequately provides a ground for reversal,ʺ and that ʺwhen

faced with a motion to reopen, the Board has an obligation to consider the record

as a wholeʺ). In doing so, it should consider whether the motion was

appropriately filed with the BIA, or whether Vela‐Estrada should return to the IJ

in the first instance.

CONCLUSION

For the foregoing reasons, the petition for review is GRANTED in

part and DISMISSED in part, and the case is REMANDED to the BIA for

proceedings consistent with this opinion.

‐ 9 ‐