Saturday, January 19, 2008

Nayyar (not precedential): No Review Of BIA Refusal To Reopen Sua Sponte

In Nayyar v. Mukasey, No. 06-3269 (3d Cir. Jan. 15, 2008) (not precedential), the well-regarded Tom Moseley lost his Third Circuit appeal because the court held it did not have jurisdiction to review the BIA's decision not to reopen a case sua sponte.

When the BIA makes a ruling, the strongest types of appeals are to make direct appeals of its decisions. The next-best option (when it is available) is to make a motion to reopen to the BIA and explain why the request falls in the BIA's rules on motions to reopen. And if the BIA denies that motion, to appeal it.

This case suggests that the weakest type of motion is to ask the BIA to reopen a case sua sponte, which means of the BIA's own accord. The reason this is a weak type of motion is that you are depending completely on the BIA's unconstrained discretion to decide whether to reopen a case sua sponte, just as when you ask the BIA to reconsider one of its decision. The Third Circuit takes the approach that because that is completely in the BIA's discretion, it is something the Third Circuit will not review.

In this case, the root of the problem might have been a potentially questionable ruling by the BIA in 1998. But the immigrant's attorney at the time perhaps did not file a direct appeal (the strongest appeal) or file a valid motion to reopen right away (the next-strongest type of motion). Around seven long years later, the immigrant finally changed lawyers and hired Tom Moseley. Perhaps the reason he filed the weakest type of motion is that the options seemed extremely limited because of all the time that passed before the immigrant finally turned to him to work on the case.

The original case was decided by Immigration Judge Henry Dogin, but the appeal focused on the BIA's rulings, not what the immigration judge ruled.


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