Ekimian v. INS: Ninth Circuit Finds No Jurisdiction to Review BIA Refusal to Reopen Deportation Proceedings Sua Sponte

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

EKIMIAN V. INS: 9TH CIRCUIT FINDS NO JURISDICTION TO REVIEW BIA REFUSAL TO REOPEN DEPORTATION PROCEEDINGS SUA SPONTE
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

In a split decision, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that the court does not have jurisdiction to review a ruling of the Board of Immigration Appeals declining to use its sua sponte authority to grant a late motion to reopen. A majority of the panel concluded that the BIA's power to reopen a case sua sponte (or on its own motion) at any time is not subject to any meaningful standard. Rather, the authority is committed to the agency's nonreviewable discretion.

The respondents in this case, the Ekimian family, were first admitted to the United States as nonimmigrant visitors from Armenia in Nov. 1993. In Dec. 1993 they applied for asylum with the Immigration and Naturalization Service. In 1995 the father was hired as a physical education instructor and educator at a private school, and later that year the school filed a petition for a labor certification on his behalf. However, the U.S. Dept. of Labor (DOL) took almost two years to approve the petition. In the meantime, after the INS denied the family's asylum application, an immigration judge also denied the application in deportation proceedings, and in April 1997 the BIA denied the Ekimians' appeal and ordered the family deported.

The family then filed a petition for review of the BIA's order. In Sept. 1997 the DOL approved the labor certification petition, and in October the INS approved the school's immigrant visa petition. In Nov. 1997, while the petition for review was pending, the Ekimians filed a motion to reopen deportation proceedings to apply for adjustment based on having an approved visa petition with a current priority date. In Dec. 1997, the Ninth Circuit denied the petition for review of the asylum denial and order of deportation.

In Feb. 1999, the BIA denied the motion to reopen as untimely, because it was filed more than 90 days after the BIA's April 1997 final order. The BIA also declined to reopen the case on its own motion. The decision did not discuss the fact of the approved petition and the immediate availability of immigrant visas for the family, nor did it discuss whether deportation would case hardship to the family. The Ekimians then filed a petition for review of this decision.

Ruling on this appeal, a majority of the panel found that there were no standards against which the BIA's denial of sua sponte reopening could be judged. The court concluded that, despite the BIA's finding in Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997) that 8 C.F.R. section 3.2(a) allows the BIA to reopen proceedings "in exceptional circumstances," there is no statutory, regulatory, or case law definition of the term governing the BIA's sua sponte reopening power. The majority concluded that the power is vested in the BIA's nonreviewable discretion.

Judge Myron Bright, Senior Circuit Judge for the Eighth Circuit, sitting on the panel by designation, dissented. Noting the general presumption in favor of judicial review of all agency decisions, Judge Bright argued that prior decisions afforded sufficient administrative and judicial case law to assess whether exceptional circumstances warranted reopening. He argued that the court should reverse and remand the BIA decision, citing the agency's abuse of discretion in failing to consider the approved visa petition. The BIA also abused its discretion, Judge Bright argued, in failing to consider that deportation would bar the family from immigrating for ten years.

Ekimian v. INS, No. 99-70322 (9th Cir. Sept. 12, 2002).