Kennedy v. Attorney General of the United States
Opinion of the Court
OPINION
Garmei Marie Kennedy petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion
I.
Kennedy is a citizen of Liberia. An Immigration Judge (“IJ”) denied her claims for asylum and other forms of relief and ordered her removal to Liberia. The IJ concluded that Kennedy voluntarily assisted in the persecution of others while in Liberia and is thus ineligible for asylum or withholding of removal under the so-called “persecutor bar.” See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)© and 1231(b)(8)(B)©. The IJ also rejected Kennedy’s claims on the merits. The BIA summarily affirmed on July 9, 2004. Kennedy did not petition for review, timely or otherwise, so we lack jurisdiction to review these underlying rulings. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir. 2008) (citing Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)).
The Supreme Court later decided Negusie v. Holder, — U.S. -, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), in which it remanded for the BIA to reconsider its long-standing position that the persecutor bar applies even if an alien’s participation in persecution was involuntary.
II.
We generally lack jurisdiction to review the BIA’s decisions regarding reopening sua sponte because the regulation providing for that discretionary authority “offers no standard governing the agency’s exercise of discretion.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). We have recognized an exception permitting review “if an agency ‘announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed©’ ” Id. (citation omitted). Kennedy argues that we have jurisdiction to review the BIA’s ruling in this case because it has announced by course of adjudication a policy of reopening sua sponte when there has been a change in the law, which she argues Negusie represents.
We disagree. Kennedy relies primarily on three BIA decisions: In re X-G-W-, 22 I. & N. Dec. 71 (BIA 1998), abrogated on other grounds by In re G-C-L- 23 I. & N. Dec. 359 (BIA 2002); In re G-D-, 22 I. & N. Dec. 1132 (BIA 1999); and In re Beckford, 22 I. & N. Dec. 1216 (BIA 2000). These decisions do not establish a general policy of reopening on the basis of a change in the law.
In In re X-G-W-, the BIA announced a policy of reopening Chinese coercive family planning cases on the basis of legislation making eligible for asylum certain aliens
In sum, we cannot conclude that the BIA has announced a policy governing the exercise of its discretion under the circumstances presented here. Accordingly, we lack jurisdiction over Kennedy’s petition for review and will dismiss it on that basis. The Government’s motion for summary action is denied as moot.
. The Supreme Court held that the BIA’s reasoning was invalid because the BIA believed itself bound on the issue by Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), which addressed a different statutory scheme. See Negusie, 129 S.Ct. at 1165-66. The Court remanded for the BIA to reevaluate the issue without treating Fedor-enko as controlling, though it acknowledged that the BIA might nevertheless reach the same conclusion. See id. at 1166-67.
Reference
- Full Case Name
- Garmei Marie KENNEDY v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published