Jurisdiction Stripping and the Presumption of Judicial Review: Who Gets to Make the Call in 2020

By Patrick M. Kinnally

February 2020

To many practitioners, including myself, Congress’s authority to strip federal courts of jurisdiction to hear certain cases, emanates in our politic because Congress does not like what federal judges might rule, or more probably it wants to control the outcome from the beginning. This seems troubling. Patchak v. Zinke 137 S. Ct. 2091 (2017) (Patchak)

Yes, Congress has the power to enact laws, even ones which define or limit the jurisdiction of federal courts. Do legislators have the authority to tell a court to dismiss a case based on statute they create? Or, prescribe a certain outcome in single controversy? See Peck “Congress’s Power Over Courts; jurisdiction Stripping and the Rule of Klein,” Congressional Research Service (August, 2018) (Peck).

On the flip side, is there truly a presumption of Judicial Review with respect to federal administrative agency actions? See, e.g. Abbot Labs v. Gardner 387 U.S. 136, 139-140 (1967). If so, where does it originate? It does not appear in the Constitution. Although, announced by the courts, and endeared to by litigants, it’s genesis seems murky. Bagley, “The Puzzling Presumption of Reviewability” Harvard Law Review 127 Harvard Law Rev. 1285 (2014).

Indeed in Patchak a plurality of the United States Supreme Court had a difficult time with this dialectic. The Statute at issue said: Does a federal statute directing a federal court to “promptly dismiss” a pending lawsuit following actual rulings permit the lawsuit to proceed, violate the Constitution’s separation of powers?” Peck at 12. It seems to me, the presumption of judicial review should have some force in our system of government. Perhaps, my view is mistaken.

In the guise of “changing the law” the Supreme Court said Congress could do so. The dissent, authored by Justice Roberts opined the new statute clearly ordained the outcome in a single case, thereby, intruding unconstitutionally in an area left to solely to the judicial branch of government. See also Bank Markazi v. Peterson, 136 S/ Ct/ 1310, 1329-38 (2016) (Peck, at 21).

But, is it clearly a role for Congress, even if a limited one? Congress should not be able to declare whether Pat Kinnally gets to win over Tom Prindable in his lawsuit. But Patchak can be read to say that. Peck at 22. Especially, where the Constitution not Congress, declared what cases and controversies the Judiciary was authorized to resolve (Article 3, Sec2).

This tension seems more awkward in the immigration context. Stripping federal judges of the ability to decide cases or controversies involving federal immigration statutes, policies or regulations? Yes, they can do that. See 8 U.S.C. 1252 (a)(2)(D) Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001). Again, we should be asking ourselves, why? Should we permit administrative law judges and adjudicators, empowered by Congress, to supplant Article iii Judges who have the authority to interpret all cases in Law and Equity arising under the Constitution and the laws of the United States? It is a knotty dilemma; the terrain, challenging.

In immigration law there is a form of procedural relief called a motion to reopen. This legal option provides a person in a removal proceeding to petition an administrative tribunal, the Board of Immigration Appeals (BIA) or an administrative law judge (IJ) and request either to revisit a decision previously made. The request must ask the BIA or the IJ to make a new decision based on newly discovered evidence or a change in circumstances or law from the time of the previous removal hearing, See Kucana v. Holder, 558 U.S. 233 (210) (Kucana).

For the most part, federal appellate courts do not have jurisdiction to review final orders of removal where certain criminal offenses occur. But see Ghahremani v. Gonzalez, 498 F. 3d. 933 (9^th cir. 2007) (Ghahremani). However, those courts do retain jurisdiction to review constitutional claims and questions of law regardless of the predicate for the removal charge. And Ghahremani held that such review included not only questions of law but mixed questions of law and fact.

As motions to reopen there are two variants. First, there is a regulatory strain to reopen 8 CFR 1003.23(b) or 8 CFR 1003.2(a), which is an administrative or executive branch fiat. It imposes a 90-day limit on reopening from a final removal order. Also, the person can invoke his/her statutory right to reopen removal proceedings under 8 U.S.C. 1229 a(c)(7) (the statute). Its temporal confine is disputed.

A motion to reopen must include the new facts that will be proven at a hearing to be held if the motion is granted. It needs to be supported by affidavits, the application for the relief sought, and other evidence. Generally, the motion should show that such proof is material, was not available at the time of the original hearing, and could not have been discovered or presented at the time of the original hearing, 8 CFR 1003.2 (c)(1). Subject to certain exceptions, a motion to reopen must be filed within 90 days of the entry of a final administrative order of removal.

The government’s view is that if a person in removal proceedings departs from the United States while the motion is pending that such departure constitutes a withdrawal of the motion. Most circuit courts have rejected this view. See Kurzban Sourcebook, 16^th Ed. (1758-60). To circumvent the 90-day limitation a person filing a motion to reopen claims that his or her failure to file should be equitably tolled. Equitable tolling is a time-honored maxim which affords a court the ability to waive the requirement of non-jurisdictional statutes of limitations where a litigant was diligent but unable to comply with filing deadline. Kucana.

The regulatory version; however, unlike the statutory prong imposes a restraint. It declares as to any person in a removal hearing whom has departed the united states from filing any motion. This is called the “departure bar” see Resendez v. Lynch, 831 F. 3d 337 (2016) (Resendez). The BIA, not an Article III Judge has opined that its administrative regulations have stripped it, categorically, of any jurisdictions to entertain any motion to reopen filed by departed persons in removal proceedings. Matter of Armendarez 24 I&N Dec. 646 (2008). The Resendez court saw it differently.

In 1973 Resendez was admitted as a lawful permanent resident alien. Almost 30 years later he pleaded guilty to possessing one gram of a controlled substance, a felony. The federal government sought to deport or remove him based on that conviction. He was ordered removed in 2003.

Eleven years later, Resendez filed a motion to reopen under the statute. The government said his motion was untimely because it was not filed within 90 days of his removal order. He had departed the United States since he was deported. Resendez replied that he was entitled to equitable tolling of the 90 day deadline, since the law had changed since he was ordered removed (Lopez v. Gonzalez 549 U.S. 47 (2006); and, the Supreme Court had opined that a statutory motion to reopen should not wear the trappings of what the Executive Branch chose to say what it thought it was, See Mata v. Lynch 135 S. Ct. 2150(2015).

Echoing Kucana, the Mata court, again held the court of appeals had misapplied the clear meaning of the statute in the context of a motion to reopen.

Noel Mata entered the United States unlawfully and remained here for over a decade. In 2010 he was convicted of assault. A year later he was ordered removed by an immigration judge. His lawyer appealed, but the appeal was dismissed because no brief was filed. Over 100 days later, Mata hired a new lawyer who filed a motion to reopen, claiming Mata’s prior lawyer had rendered ineffective assistance of counsel. The BIA, although recognizing it had authority to equitably toll the 90-day filing restraint, in some cases, declined to do so. Mata filed a petition with the Circuit Co8urt of Appeals to review the BIA decision. But the 5^th circuit Court of Appeals refused. It said it had no jurisdiction to review whether the BIA’s refusal to exercise its authority to reopen sua sponte, and therein equitably toll the 90 day limitation period.

The Supreme Court stated the circuit court of appeals conflated the issue of jurisdiction with the statutory right to file a motion to reopen and seek review of that decision. Said differently, whether the BIA rejects the alien’s motion to reopen because it is filed after 90 days from the final administrative order, or is inadequate in some other way, does not equate with law that the court of appeals is without power to review that decision. On the merits, perhaps, the BIA’s decision is erroneous. But to get there the Circuit Court has to take jurisdiction over the case, explain why this is or not so, and make a ruling.

On December 9, 2019 the U.S. Supreme Court heard arguments on Guerrero-Lasprilla v. Barr (s. ct. No. 18-776) (Guerrero) and Ovalles v. Barr (Ovalles) S. Ct. No. 18-1015 (2019). The issue presented, is if a noncitizen files an untimely motion to reopen a removal case, explains the reason for the delay, and loses before the BIA, can the Circuit Court of Appeals review that decision? In other words, can Congress strip the Circuit Court of Appeals of jurisdiction to entertain such a motion to reopen? Who gets to make that call? Congress through its cadre of appointed administrative judges, or our judiciary?

In Guerrero and Ovalles, both were lawful permanent residents and were deported for criminal convictions. Congress stripped federal courts of jurisdiction to hear appeals from removal orders for the crimes they committed. Guerrero and Ovalles filed motions to reopen over a decade after their removal from the United States. Citing Resendez they claimed the right to reopen and they were diligent in filing their motions once Resendez was authored. Furthermore, they argued the Supreme Court could take a look at the mixed question of law and fact in determining whether Congress effectively stripped the federal courts of jurisdiction in those types of cases.

Pedro Guerrero-Lasparilla (Guerrero) was a lawful permanent resident for 12 years when he was removed for felony drug convictions in 1998. 18 years later in 2016 he filed a motion to reopen claiming a BIA decision (Matter of Abdeighany 26 I&N Dec. 254 (BIA 2014), afforded him a basis of relief from the removal order (i.e., a change in law). The IJ and the BIA denied his motion. Since Abdeighany had been filed in 2014 both administrative tribunals found Guerrero, in the ensuing two years, had not been diligent in pursuing the motion, In their view, equitable tolling did not apply. In response, Guerrero said he could not have filed his motion until the court of appeals authored its decision in Resendez in 2016.

Again as, in Mata, the fifth circuit opined it lacked jurisdiction to review the BIA’s decision. It did so, by concluding that whether Guerrero pursued his motion in earnest was a factual question, not a legal one. Because Congress had stripped the courts of jurisdiction to entertain the matter based on the facts of Guerrero’s motion, (and the underlying criminal convictions) namely, the circumstances he undertook to perfect his motion, it had no power to consider it. According to the government it was a factual dispute which Congress had foreclosed our judiciary from considering.

As we segue into 2020 with the issues of Congressional authority and eviscerating judicial authority to decide cases and controversies perhaps, as judges and advocates we might pause and return to examine exactly what Article III actually says what it means. Our judiciary gets to interpret the law, not make it. In Guerrero, we may see the true extent of Congressional authority to strip federal judges to hear certain types of immigration cases. Article III of the Constitution states the Supreme Court shall have appellate jurisdiction with such exceptions and under such regulations as the Congress shall make (Art III, Sec. 2). But the presumption of judicial review in the face of a statute that seems unclear, may prove telling. I guess we will see how that goes. The court’s opinion will be much anticipated by many of us.

Patrick Kinnally concentrates in general and commercial litigation, immigration and citizenship and administrative, environmental and local government law. Pat, a current Member and past Chair of the International and Immigration Law Section Council, can be reached at Kinnally Flaherty Krentz Loran Hodge & Masur PC by phone at (630-907-0909 or by email to pkinnally@kfkllaw.com

Patrick M. Kinnally

Kinnally Flaherty Krentz Loran Hodge & Masur PC

2114 Deerpath Road

Aurora, IL 60506-7945

Pkinnally@kfkllaw.com

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February 2020 - Volume 57 - Number 6