Butka v. U.S.

Attorney General
https://www.leagle.com/decision/infco20160706080

Citations

Pg.2 Citation:​ “While 8 U.S.C 1252 (2012) generally confers exclusive jurisdiction on the courts of
appeals to review Board decisions denying motions to reopen final removal orders, the Court lacks
jurisdiction to review the Board’s denial of a request for sua sponte reopening, with the possible exception
of constitutional issues.” Butka 827F.3d at 1278, 1283-86 & n.7

Pg.9 Citation​: “The Court, therefore, has no jurisdiction to review the agency’s decision to deny sua
sponte reopening.” Butka 827F.3d at 1278, 1283-86 & n.7

Pg. 11 Citation​: “As discussed above, however, the Court lacks jurisdiction to consider these meritless
arguments.” Butka 827F.3d at 1283-86 & n.7

Pg. 12 Citation: ​“Although it remains an open question in this Circuit whether the Court has jurisdiction
over constitutional claims related to the Board’s decision not to exercise its sua sponte authority, Butka
827F.3d at 1284, this Court lacks jurisdiction to consider procedural due process claims that have not
been exhausted before the agency.”

General Overview of Butka:

827F.3d 1278-1281

“This matter was before the Board on August 10, 2010, when we dismissed the respondent's appeal from
the Immigration Judge's decision determining that she is ineligible for a waiver of inadmissibility under
section 212(h) of the Immigration 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​. See 8 C.F.R. § 1003.2(a).For
reasons discussed in the Board's prior decision, ​the respondent is not eligible for a waiver of
inadmissibility due to her conviction of a controlled substance 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 possession of 30 grams or less of marijuana, and we are not persuaded that the respondent'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 specific type of conduct (possession for one's own use) committed on a specific number of
occasions (a `single' offense) and involving a specific quantity (30 grams or less) of a specific substance
(marijuana)).”

What the Text Says:

827F.3d 1283

“​This Court has jurisdiction to review the BIA's denial of a petitioner's motion for statutory
reopening. See Jiang v. U.S. Att'y Gen., ​568 F.3d 1252​, 1256 (11th Cir. 2009) (reviewing for abuse of
discretion).”

Lenis v. U.S. Attorney General (See Lenis v. U.S. Attorney General section)

“​We directly answered this question in Lenis. T​his 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 Lenis, requested sua sponte reopening based on an
intervening change in the law. See id. at 1292. The BIA denied her motion. See id.”

“In reviewing Lenis's petition for review, this Court explained that, "under the Administrative Procedure
Act,​ judicial review is not available when `agency action is committed to agency discretion by law.'"
Id. at 1293 (quoting 5 U.S.C. § 701(a)(2)). This situation occurs when the statute at issue does not provide
a "meaningful standard against which to judge the agency's exercise of discretion." Id. (quotation marks
omitted)”

827F.3d 1284

“The Lenis Court then concluded that ​neither the INA nor 8 C.F.R. § 1003.2(a) provided any
"standard to govern the BIA's exercise of its discretion" to sua sponte reopen immigration
proceedings.​ Id. ​Therefore, it did not have jurisdiction to review the BIA's decision. Id. at 1294​. The
Court noted that, in reaching this conclusion, it was agreeing with ten other courts of appeal that had also
concluded "that they have no jurisdiction to hear an appeal of the BIA's denial of a motion to reopen
based on its sua sponte authority.”

“​At the end of Lenis, this Court, however, expressly left open the question of whether "an appellate
court may have jurisdiction over constitutional claims related to the BIA's decision not to exercise
its sua sponte power​." Id. at 1294 n. 7 (emphasis added). The Court observed that it had no occasion to
answer that question because Lenis did not raise any constitutional claims in her petition for review. Id.
That question still remains open.”
827F.3d 1285

Case of Mata v. Lynch

The Supreme Court reversed the Fifth Circuit, explaining that c​ircuit courts have jurisdiction to review
the denial of statutory motions to reopen, and "that jurisdiction remains unchanged if the Board, in
addition to denying the alien's statutorily authorized motion, states that it will not exercise its
separate sua sponte authority to reopen the case.​" Id. at ___, 135 S.Ct. at 2154-55 (emphasis added).

The Supreme Court assumed, arguendo, that circuit courts do not have jurisdiction to review the BIA's
denial of sua sponte reopening and summarized its holding as follows: "That courts lack jurisdiction over
one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the
alien's request)." Id. at ___, 135 S.Ct. at 2155.

The Supreme Court ordered the Fifth Circuit to assert jurisdiction over the BIA's denial of
equitable tolling and statutory 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 reopening
case).

827F.3d 1286 (Decision)

“Like Butka, Lenis sought reopening based on an alleged intervening change in the law. Id. at 1292. This
Court, however, did not review whether the BIA correctly assessed the impact of the new law on Lenis's
case. Rather, this Court held that it did not have jurisdiction over that issue or any other — save perhaps
constitutional claims — related to Lenis's motion to sua sponte reopen. See id.at 1294 & n. 7.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 dismiss.”

Chao Lin v. U.S Attorney General

https://www.leagle.com/decision/infco20120417080
Citations

Pg.8 Citation: ​“This Court determines it own jurisdiction de novo.” Chao Lin v. U.S Attorney General,
677 F.3d 1043, 1045

General Overview of Chao Lin:

677 F.3d 1044

“To avoid deportation, Xue Yun Lin filed an application for asylum, withholding of removal, and
protection under the Convention Against Torture on behalf of herself and her husband. Xue Yun asserted
that she feared that she and Chao would be persecuted if they returned to China because she had given
birth to two children in violation of Chinese policy and she was pregnant with a third child. Xue Yun
alleged that she would be forced by China to have an abortion and China would forcibly sterilize her. An
immigration judge denied the Lins' application, and the Board of Immigration Appeals affirmed and
ordered the Lins removed on September 18, 2006.The Lins filed three unsuccessful consecutive motions
to reopen their removal proceedings. On December 14, 2010, the ​Board affirmed the immigration
judge's denial of the last of the Lins' motions to reopen on the ground that the motion was both
untimely, 8 U.S.C. § 1229a(c)(7)(C)(i), and number-barred​, ​id.​ § 1229a(c)(7)(A), and the Lins had
failed to establish that they qualified for an exception based on changed country conditions, ​id.​ §
1229a(c)(7)(C)(ii). ​The Lins petitioned our Court for review of the decision of the Board to deny
their motion to reopen​. On January 12, 2011, the Lins paid a commercial parcel service, Federal
Express, to deliver their petition to this Court on January 13. On January 13, the Clerk's office delayed
opening until 10:30 a.m., due to inclement weather, but the Clerk's office remained open until its standard
closing time of 5 p.m. Federal Express delivered the Lins' petition on January 14.”

What the Text Says:

677 F.3d 1045 (Court Decision)

"We review ​de novo​ our subject matter jurisdiction."​ ​Sanchez Jimenez v. U.S. Att'y Gen.,​ ​492 F.3d
1223​, 1231 (11th Cir.2007). "[E]very federal appellate court has a special obligation to satisfy itself . . . of
its own jurisdiction . . . even though the parties are prepared to concede it." ​Bender v. Williamsport Area
Sch. Dist.,4​ 75 U.S. 534​, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (internal citation and
quotation marks removed).

We must determine whether the Lins' petition was timely because "the statutory limit for filing a petition
for review in an immigration proceeding is mandatory and jurisdictional" and "not subject to equitable
tolling." ​Dakane v. U.S. Att'y Gen., ​371 F.3d 771​, 773 n. 3 (11th Cir.2004) (internal citation and quotation
marks removed). The Immigration and Nationality Act provides jurisdiction for our Court to review an
order denying a motion to reopen, ​Patel v. U.S. Att'y Gen., ​334 F.3d 1259​, 1261 (11th Cir.2003), so long
as the movant files a petition for review within 30 days of the decision of the Board, 8 U.S.C. §
1252(b)(1). A petition for review is filed when it is received by the Clerk of the Court. Fed. R.App. P.
25(a)(2)(A). If the Clerk's office is "inaccessible . . . on the last day for filing . . . then the time for filing is
extended to the first accessible day that is not a Saturday, Sunday, or legal holiday." Fed. R.App. P.
26(a)(3)(A). ​The Clerk did not receive the Lins' petition until 31 days after the Board issued its
order, so we lack jurisdiction to consider that petition unless the Clerk's office was "inaccessible"
on the day the Lins' petition was due.

677 F.3d 1046 (Court Decision)

The Lins' argument fails under any recognized standard for inaccessibility. No extenuating circumstances
are present here. ​The Lins offer no evidence or assertion that the weather made it impossible for
them to access the Clerk's office, nor do they contend that they lacked internet access to file their
petition electronically. The Clerk's office "was not physically inaccessible due to inclement
weather." ​Hotel Syracuse, 154 B.R. at 18. ​"[T]hat office remained open . . . and was accessible to the
general public." ​Id. Although the Lins assert that they should not suffer for the delay by Federal Express,
they fail to explain how the Clerk's office was inaccessible.

The Lins cite three decisions outside our circuit to argue that "extraordinary circumstances justify[] relief
from a late filing," but those decisions are inapposite. In those appeals, ​Oh v. Gonzales, ​406 F.3d 611 (9th
Cir.2005), ​Anssari-Gharachedaghy v. INS, ​246 F.3d 512 (6th Cir.2000); and ​Sun v. U.S. Dep't of Justice,
421 F.3d 105 (2d Cir.2005), our sister circuits considered whether the Board had abused its discretion in
denying an untimely appeal from a decision of an immigration judge. The Lins fail to cite any decision
that suggests that a circuit court has jurisdiction over an untimely petition for review of an order of
the Board. Because the deadline for filing a petition "is not subject to equitable tolling," ​Dakane,
371 F.3d at 773 n. 3, we must dismiss the Lins' petition for lack of jurisdiction.

Gomez-Palacios v. Holder

https://www.leagle.com/decisions/browse/series/volume/560%20F.3d

Citations

Pg.13 Citation: “​See Gomez- Palacios v. Holder, 560 F.3d 354, 359 (5th Cir.2009) (concluding that
‘[s]substantial evidence supports the [Board’s] finding that the notice was mailed to the last address
provided by Gomez-Palacios: the address was typed on the notice itself and could be seen through a
cellophane window in the envelope in which the notice was mailed’)”
General Overview of Gomez-Palacios

560 F.3d 354

On March 30, 2000, a notice of hearing ("NOH") was mailed to Gomez-Palacios at the provided address,
advising him that his removal hearing would take place on September 27, 2000. The NOH was returned
with a stamped notation on the envelope, "no such number." The hearing nevertheless took place, and, on
September 27, 2000, Gomez-Palacios was ordered removed to Honduras based on the charge in the NTA.
However, on July 30, 2001, the immigration judge sua sponte reopened the proceedings, finding that
Gomez-Palacios had provided a change of address specifying his correct address as "1390 Callen Street,
Apartment B, Vacaville, CA 95688," and stating that correspondence should be addressed in care of Idalia
Castillo.On August 11, 2001, the immigration court mailed an NOH to the corrected address notifying
Gomez-Palacios that a hearing on his removal proceedings would be held on April 1, 2002.​1 On April 1,
2002, another NOH was mailed to Gomez-Palacios, informing him that his hearing would be held on
August 28, 2002. The NOH was addressed to Gomez-Palacios at the last known address he provided, but
it was returned to the immigration court stamped "attempted, not known."Gomez-Palacios failed to appear
at the scheduled removal hearing on August 28, 2002. At that hearing, he was ordered removed in
absentia.More than four years later, on September 14, 2006, Gomez-Palacios filed a motion to reopen his
removal proceedings on the grounds that the required statutory notice of the removal hearing was not
provided. The IJ denied the motion on the basis that Gomez-Palacios had failed to demonstrate that his
failure to appear was through no fault of his own, stating that ​Gomez-Palacios had been told to notify
the immigration court of any change in his address, that the NOH was sent to the most recent
address provided to the court, and that Gomez-Palacios had not explained why he failed to provide
his current address each time he relocated as he was required to do, reflecting the immigration
court's apparent finding that Gomez-Palacios had not received the NOH because he had
relocated​.​Gomez-Palacios appealed the denial of his motion to reopen to the BIA. The Board denied
the appeal, holding that Gomez-Palacios failed to receive the NOH because he neglected to provide
the immigration court with a current mailing address, as the NOH was mailed to the most recent
address provided by Gomez-Palacios and the "attempted, not known" stamp and the absence of
any evidence provided by Gomez-Palacios to explain the unsuccessful delivery showed that either
the last address he provided was never his true

What the Text Says:

560 F.3d 359

Gomez-Palacios contends that he did not receive the required notice because the NTA that he received in
person was defective because (1) it did not provide an adequate warning of the consequences of failing to
provide updated contact information and failing to appear and (2) it did not include the specific time and
date of his hearing. ​However, the NTA specifically informed Gomez-Palacios that if he failed to
provide updated contact information "then the Government shall not be required to provide you
with written notice of your hearing,​" and that if he failed to appear at his hearing, which could be held
at "any date and time later directed by the Immigration Court, a removal order may be made by the
immigration judge in your absence, and you may be arrested and detained by the INS." ​Further, an NTA
need not include the specific time and date of a removal hearing in order for the statutory notice
requirements to be satisfied; that information may be provided in a subsequent NOH​. ​See Mehdi v.
Gonzales, 216 Fed.Appx. 412, 414 (5th Cir.2007) (citing ​Haider v. Gonzales, ​438 F.3d 902​, 907 (8th
Cir.2006)); ​see also Dababneh v. Gonzales,​ ​471 F.3d 806​, 809 (7th Cir.2006).

Gomez-Palacios also contends that he did not receive the required statutory notice because there is no
record evidence that he actually received notice of the August 28, 2002, removal hearing or that the NOH
was even mailed to the correct address. Substantial evidence supports the BIA's finding that the notice
was mailed to the last address provided by Gomez-Palacios: the address was typed on the notice itself and
could be seen through a cellophane window in the envelope in which the notice was mailed. With respect
to Gomez-Palacios's contention that he did not actually receive notice of the hearing, the BIA actually
agreed with Gomez-Palacios that the return of the NOH with the notation "attempted, not known,"
demonstrated that the notice was not actually received. However, the parties dispute whether an alien's
failure to receive actual notice, regardless of the reason, entitles the alien to the rescission of his removal
order under 8 U.S.C. § 1229a(b)(5)(C)(ii). Gomez-Palacios argues that an alien is entitled to rescission of
a removal order upon a showing that the alien did not receive actual notice of the alien's removal hearing,
regardless of the reason that the alien did not receive notice. The government argues that an alien has
received notice under § 1229a(b)(5)(C)(ii) as long as the government has attempted delivery to the last
address provided by the alien as required under § 1229(a). ​We reject both of these arguments as unduly
extreme, and hold that the statute and our precedent require a more moderate and commonsense
approach.

560 F.3d 360(Court Decision)

In this case, the BIA held that Gomez-Palacios was not entitled to rescission of his removal order
because his failure to receive actual notice of the time of his postponed hearing was the result of not
complying with his obligation to keep the immigration court apprised of his current mailing
address​. Such a failure is grounds for denying rescission of a removal order under § 1229a(b)(5)(C)(ii).
In light of the fact that the record shows that the NOH for the August 28, 2002, hearing was mailed to the
last address provided by Gomez-Palacios and returned to the immigration court stamped "attempted, not
known," and in the absence of any record evidence submitted by Gomez-Palacios showing that the
address provided to the immigration court was in fact his mailing address and that he had not moved, we
find that there is substantial evidence to support the BIA's finding that Gomez-Palacios did not receive
notice of his August 28, 2002 hearing because he failed to comply with his obligation to provide the
immigration court with current address information.
Heckler v. Chaney

https://supreme.justia.com/cases/federal/us/470/821/

Citations
Heckler v. Chaney Quote from Lenis v. U.S Attorney General on pg.9:​ “​It is undisputed that under
the Administrative Procedure Act, judicial review is not available when "agency action is committed to
agency discretion by law." 5 U.S.C. § 701(a)(2).​ The "committed to agency discretion" exception is a
"very narrow exception" that "is applicable in those rare instances where `statutes are drawn in
such broad terms that in a given case there is no law to apply.'"​ ​Citizens to Preserve Overton Park,
Inc. v. Volpe,​ ​401 U.S. 402​, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 79-752, at 26
(1945)), ​abrogated on other grounds by Califano v. Sanders,​ ​430 U.S. 99​, 105, 97 S.Ct. 980, 51 L.Ed.2d
192 (1977). ​The Supreme Court has since explained 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." ​Heckler v. Chaney,​470 U.S. 821​, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).​”

General Overview of Heckler v. Chaney

470 U.S. 821

Respondent prison inmates were convicted of capital offenses and sentenced to death by lethal injection
of drugs. They petitioned the Food and Drug Administration (FDA), alleging that use of the drugs for
such a purpose violated the Federal Food, Drug, and Cosmetic Act (FDCA), and requesting that the FDA
take various enforcement actions to prevent those violations. The FDA refused the request. Respondents
then brought an action in Federal District Court against petitioner Secretary of Health and Human
Services, making the same claim and seeking the same enforcement actions. The District Court granted
summary judgment for petitioner, holding that nothing in the FDCA indicated an intent to circumscribe
the FDA's enforcement discretion or to make it reviewable. The Court of Appeals reversed. Noting that
the Administrative Procedure Act (APA) only precludes judicial review of federal agency action when it
is precluded by statute, 5 U.S.C. § 701(a)(1), or "committed to agency discretion by law," § 701(a)(2), the
court held that § 701(a)(2)'s exception applies only where the substantive statute leaves the courts with
"no law to apply," that here there was "law to apply," that therefore the FDA's refusal to take enforcement
action was reviewable, and that, moreover, such refusal was an abuse of discretion.
What the Text Says:

470 U.S. 821

“a) Under § 701(a)(2), judicial review of an administrative agency's decision is not to be had if the
statute in question is drawn so that a court would have no meaningful standard against which to
judge the agency's exercise of discretion​. In such a case, the statute ("law") can be taken to have
"committed" the decision making to the agency's judgment absolutely. ​An agency's decision not to take
enforcement action is presumed immune from judicial review under § 701(a)(2). Such a decision
has traditionally been "committed to agency discretion,​" and it does not appear that Congress, in
enacting the APA, intended to alter that tradition. Accordingly, such a decision is unreviewable unless
Congress has indicated an intent to circumscribe agency enforcement”

Lenis v. U.S Attorney General

https://www.leagle.com/decision/20081816525f3d129111687

Citations
Pg.9 Citation:​ “This court has held that, per the Administrative Procedure Act, it lacks jurisdiction to
review the agency’s decision not to exercise its sua sponte authority to reopen proceedings because [there
is] no meaningful standard against which to judge the agency’s exercise of discretion.’ Lenis v. U.S
Attorney General, 525 F.3d 1291, 1293

Pg.11 Citation​:

“In addition to lacking sound legal support, this argument appears to overlook the fact that the agency’s
sua sponte reopening authority is committed entirely to agency discretion and governed by ‘absolutely no
standard.” Lenis, 525F.3d at 1293.

“As discussed above, however the Court lacks jurisdiction to consider these meritless arguments.” Lenis,
525F.3d at 1294.

General Overview of Lenis v. U.S Attorney General

525F.3d at 1291-1292
Petitioners Clara Ines Lenis, her husband Orlando Herrera, and their two children Tatiana Herrera and
Marlon Herrera(collectively, "Lenis"), petition for review of the Board of Immigration Appeals' ("BIA's")
decision denying their motion for a ​sua sponte reopening of their case, pursuant to 8 C.F.R. §
1003.2(a).​1 On appeal, Lenis claims that the BIA abused its discretion in denying a request to use its
sua sponte powers to reopen the underlying proceedings essentially because the agency had issued a
precedential decision changing the meaning of the term "particular social group" under the asylum
laws​. After thorough review, we dismiss the petition for lack of jurisdiction.The dispositive issue is
whether we have jurisdiction to review the BIA's denial of a motion to reopen the underlying immigration
proceedings based on its ​sua sponte authority. We are, of course, always required to address whether we
have subject-matter jurisdiction. ​Chacon-Botero v. U.S. Att'y Gen.,​ ​427 F.3d 954​, 956 (11th Cir.2005).

What the Text Says:

525F.3d at 1292

Ten courts of appeals have held that they have no jurisdiction to hear an appeal of the BIA's denial
of a motion to reopen based on its ​sua sponte authority​. ​See Luis v. INS, ​196 F.3d 36​, 40 (1st
Cir.1999); ​Ali v. Gonzales, ​448 F.3d 515​, 518 (2d Cir.2006) (per curiam); ​Calle-Vujiles v. Ashcroft, ​320
F.3d 472​, 474-75 (3d Cir. 2003); ​Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam)
(unpublished);

525F.3d at 1293

It is undisputed that under the Administrative Procedure Act, judicial review is not available when
"agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The "committed to
agency discretion" exception is a "very narrow exception" that "is applicable in those rare instances where
`statutes are drawn in such broad terms that in a given case there is no law to apply.'" ​Citizens to Preserve
Overton Park, Inc. v. Volpe, ​401 U.S. 402​, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No.
79-752, at 26 (1945)), ​abrogated on other grounds by Califano v. Sanders, ​430 U.S. 99​, 105, 97 S.Ct.
980, 51 L.Ed.2d 192 (1977). ​The Supreme Court has since explained 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." ​Heckler v. Chaney,4​ 70 U.S. 821​, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714
(1985). Neither the statute nor the regulation at issue today provides any "meaningful standard against
which to judge the agency's exercise of discretion." ​Indeed, no statute expressly authorizes the BIA to
reopen cases ​sua sponte​; rather, the regulation at issue derives from a statute that grants general
authority over immigration and nationalization matters to the Attorney General, and sets no
standard for the Attorney General's decision-making in this context. ​See 8 U.S.C. § 1103(g)(2).​5
Likewise, while the regulation itself, 8 C.F.R. § 1003.2(a), expressly gives the BIA discretion to ​sua
sponte reopen cases, it provides absolutely no standard to govern the BIA's exercise of its
discretion.​6

Footnote
3. Since ​Anin,​ this Court's unpublished opinions have reached differing conclusions about whether we
have jurisdiction to review the BIA's decision not to reopen based on its ​sua sponte​ authority. ​Compare
Tofade v. U.S. Att'y Gen.,​ 236 F. App'x 526, 528 (11th Cir. 2007) (unpublished) (holding that this Court
lacks jurisdiction), ​Lushaj v. U.S. Att'y Gen.,​ 197 Fed.Appx. 881, 885 (11th Cir.2006) (unpublished)
(same), ​and Umana v. U.S. Att'y Gen.,​ 176 Fed.Appx. 15, 17 (11th Cir.2006) (unpublished) (same), ​with
Finlayson-Green v. U.S. Att'y Gen.,​ 228 Fed.Appx. 919, 921 (11th Cir.) (unpublished) (holding that this
Court has jurisdiction), ​cert. denied,​ ___ U.S. ___, 128 S.Ct. 733, 169 L.Ed.2d 553 (2007), ​Banmally v.
U.S. Att'y Gen.,​ 199 Fed.Appx. 936, 937 n. 1 (11th Cir.2006) (unpublished) (same), ​and Rahman v. U.S.
Att'y Gen.,​ 187 Fed.Appx. 962, 965-66 (11th Cir.2006) (unpublished) (same). Because these opinions
were unpublished, however, they have no precedential value. ​See​ 11th Cir. Rule 36-2; ​United States v.
Tamari,​ ​454 F.3d 1259​, 1262 n. 4 (11th Cir.2006).

Radkov v. Ashcroft: 375 F.3d 96 (1st Cir. 2004)

https://casetext.com/case/radkov-v-ashcroft
file:///C:/Users/Faith/Downloads/radkov-v-ashcroft.pdf

Pg. 1: “The petitioners, Radko Radkov and Marta Dontcheva Pencheva Radkova, Bulgarian
nationals, seek review of a decision by the Board of Immigration Appeals (the BIA) denying
their motion to reopen as *97 untimely filed.” *Similar circumstances
● “An immigration judge found the petitioners excludable and denied their request for
asylum and withholding of deportation...The BIA upheld this determination...the
petitioners did not seek judicial review and the time for doing so expired. The petitioners,
through new counsel, filed a motion to reopen on July 15, 1999. ​The command of 8
C.F.R. § 1003.2(c)(2) provides that motions to reopen must be docketed with the
BIA no later than ninety days after the date of the final administrative decision in
the underlying proceeding
● “The petitioners...stat[ed] that she never received the Decision. On this basis, the
petitioners argued that the Decision had never been mailed to the attorney and that,
therefore, they had been deprived of a fair chance to seek judicial review.”
● “On June 1, 2000, the BIA denied the petitioners' motion as untimely..."[i]f the decision
was sent out in due course [properly mailed], then the petitioners missed the ninety-day
deadline to move to reopen," and, thus, denial of the motion to reopen was appropriate.”
Pg. 2:
 ● “The BIA found that the Decision had been seasonably mailed to Attorney Rolinski
at the last address she had provided...it rejected the petitioners' request that, as a
matter of unfettered discretion, it reissue its final administrative decision in light of
the claim that she did not receive the Decision...In that regard, the BIA took pains to
explain that the record did not reflect any written notice of a change in address until
well after [the date of IJ decision].”
● “In the immigration context, as elsewhere, an error of law on the trier's part
comprises an abuse of discretion. See, e.g., Rosario-Urdaz v. Rivera-Hernandez, 350
F.3d 219, 221 (1st Cir. 2003).”
● So long as the Decision was contemporaneously mailed to petitioner, he/she cannot
claim he/she did not receive said decision or attempt to modify an address “after the
time for filing a motion to reopen in this case had expired.”
Pg. 3:
● “The claim that the envelope cannot constitute proof of mailing because no mailing
address appears on it and, therefore, it "cannot be connected to [petitioners'] file at
all" is a “gross exaggeration.”
● “Even if, as the petitioners contend, the mailing in this case somehow went awry
without any fault on the part of the BIA, that circumstance alone would not excuse
the failure to file a timeous motion to reopen.”
Possible Loopholes in the Respondent’s Brief:
“The original envelope utilizes a clear window for the display of a mailing address, and the
transmittal letter accompanying the Decision contains the name and address of petitioners'
then-attorney in the upper left-hand corner, designed to appear in the glassine window
when folded for mailing. While inferences are needed to make the connection, those
inferences are reasonable ones.”
*”substantial evidence supports notice was mailed to…” last given address: “the
address was typed on the notice itself and could be seen through a cellophane window in
the envelope in which the notice was mailed.”
*Name was not included
*Address could be clearer + unambiguous throughout the mailing process
*Must verify that notice was sent contemporaneously
Still, the petitioner should have notified ahead of time that their was a change of address;
impartial use of case law

Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d

884 (11th Cir. 2007)
https://www.courtlistener.com/pdf/2007/06/06/Pedro_Javier_Rodriguez_Morales_v._U.S._Atty.
_Gen..pdf
.

Pg. 8: The BIA dismissed Rodriguez’s appeal, affirming the IJ’s decision that Rodriguez
had failed to establish that the harm that he feared was on account of a protected ground.
The BIA found that, while an alien need not show that he was persecuted solely based on
his political opinion, he must produce evidence from which it is reasonable to conclude that
the harm was motivated, at least in part, by an actual or imputed political opinion.

Pg. 10: “When, as here, the BIA issues its own opinion, we review only the decision of the
BIA, except to the extent the BIA expressly adopts the IJ’s decision. See Reyes-Sanchez v.
U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).”
● “To reverse the [BIA’s] fact findings, [this Court] must find that the record not only
supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287
(11th Cir. 2003).
https://www.leagle.com/decision/20071372488f3d88411371

Pg. 3 [488 F.3d 890]: “In reviewing the BIA's finding that an alien has not established
persecution on the basis of a protected ground, our review is limited to whether the BIA's
decision was "supported by reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117
L.Ed.2d 38 (1992)

Respondent’s Brief (Scope and Standard of Review):

“Where, as here, the Board issues its own opinion and does not adopt the IJ’s
opinion, this Court reviews only the Board’s decision
Pg. 10 of Rodriguez Morales v. U.S. Att’y Gen: “When, as here, the BIA issues its
own opinion, we review only the decision of the BIA, except to the extent the BIA expressly
adopts the IJ’s decision. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th
Cir. 2004).”
● The BIA DID adopt the IJ’s decision, backing it up completely. Therefore,
this is incorrect. The court has jurisdiction to review and affect the decision
of the IJ
● This case law’s decision is the product of a totally different case
(Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004).

Stone v. INS, 514 U.S. 386 (1995)

https://www.law.cornell.edu/supct/html/93-1199.ZO.html
https://casetext.com/search?q=STONE%20v.%20IMMIGRATION%20AND%20NATURALIZ
ATION%20SERVICE&p=1&tab=keyword&jxs=&sort=relevance&type=case

Pg 3: “The Court held that this interaction resembled that which takes place between (1)
an appeal from a district court judgment to a court of appeals (which I shall call a
"court/court" appeal) and (2) certain motions for district court reconsideration, namely
those filed soon after entry of the district court judgment. See Fed. Rule App. Proc. 4(a)(4).
The relevant statute (commonly called the Hobbs Act) said that a petition for review of a
final agency order may be filed in the court of appeals "within 60 days after its entry." 28
U.S.C. § 2344. The Court concluded, on the basis of precedent, that the filing of a proper
petition for reconsideration, "within the period allotted for judicial review of the original
order . . . tolls the period for judicial review of the original order." 482 U. S., at 279. That
order can "be appealed to the courts . . . after the petition for reconsideration is denied."

Pg 5: “The ALJ denied Stone's application for suspension of deportation under 8 U.S.C. §
1254(a)(1), concluding that Stone's conviction of mail fraud and 18 month incarceration
barred him, as a matter of law, from establishing "good moral character" as required by
§1254. See 8 U.S.C. § 1101(f)(7).” *Dissimilar circumstances
● Section 106(a)(1) of the Immigration and Nationality Act (INA) specifies that "a
petition for review [of a final deportation order] may be filed not later than 90 days
after the date of the issuance of the final deportation order, or, in the case of an
alien convicted of an aggravated felony, not later than 30 days after the issuance of
such order." ​8 U.S.C. § 1105a​(a)(1) (1988 ed., and Supp. V).
Loophole for Respondent’s Brief:
“The court lacks jurisdiction to review said decision not only because it was not appealed to
the Board, but also because, even had it been appealed to the Board, Mr. Bilek would have
been required to timely file a petition for review of that Board order which would have
been addressed by the IJ’s 1999 decision.

Claims that law holds “that failure to file a timely petition to review those orders in the
context of a subsequent timely petition for review of the denial of reconsideration and
reopening.”

Mr. Bilek was years late, but there was no need until now. The respondent was consistently
and rightfully referenced this case. Stiil, this case holds “that the IJ's removal order and
the Board's denial of a motion to reopen are “two separate final orders”
 Tovar-Cortez v. U.S. Att’y Gen., 325 F. App’x
344 (11th Cir. 2009)
https://casetext.com/case/tovar-cortez-v-us-atty-gen

Oliver Adonay Tovar-Cortez, through counsel, petitions for review of the final order of the
Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") denial of
his claims for asylum and withholding of removal under the Immigration and Nationality
Act ("INA"), INA §§ 208, 241(b)(3)(A), 8 U.S.C. §§ 1158, 1231(b)(3)(A), 8 C.F.R. § 208.16

Pg. 2: I. Background“On appeal to the BIA, Tovar-Cortez argued that the IJ erred by
failing to find that he was eligible for asylum or withholding of removal because he had
been *346 persecuted based on his political opinion.1 TovarCortez argued that the IJ erred
by finding that the Maras were not a political organization. The BIA affirmed the IJ's
decision, finding that Tovar-Cortez failed to establish a nexus between the alleged
persecution and a protected ground. The BIA agreed with the IJ that any fear of future
persecution was based on Tovar-Cortez's refusal to join a criminal gang, which did not
amount to expression of a political opinion or lead to the imputation of a political opinion.
We agree with the decisions and reasoning of the IJ and BIA, and accordingly deny the
petition.”

Pg. 2: “If a party fails to raise an issue before the BIA, we do not have jurisdiction to
consider that issue, even if the BIA considered the issue sua sponte.” Amaya-Artunduaga v.
U.S. Att'y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (per curiam). I

Loophole in Respondent’s Brief:

Claims that “Because Sundar did not exhaust his administrative remedies by appealing to
the [Board] before seeking habeas review of the [IJ] removal order, the district court’s
denial of his habeas petition on that ground was proper.”

BUT this court still has jurisdiction (left out in Respondent’s Brief)
Pg : 2: “To the extent that the BIA adopts the IJ's reasoning, we review the IJ's decision
also. Id. Here, the BIA issued a written opinion, in which it agreed with the reasoning of the
IJ. Therefore, we review the BIA's opinion, and the IJ's opinion only to the extent that the
BIA adopted the IJ's reasoning.”
*Little Connection as this case outlines the “eligibility for asylum or withholding of
removal, an alien must establish a nexus between a statutorily protected ground and the
persecution,” NOT on the way in which the petitioner is to appeal or seek remedies