Introduction: INS v. Rios-Pineda — Discretionary Authority to Deny a Motion to Reopen Proceedings

The Supreme Court decision in INS v. Rios-Pineda, 471 U.S. 444 (1985) [PDF version] affirmed the Attorney General’s broad discretion to deny a motion to reopen deportation proceedings where a moving party can establish a prima facie (on its face) case for eligibility for relief. Although the facts of the case in Rios-Pineda were addressed in the context of the now-superseded suspension of deportation relief, the court’s analysis of the Attorney General’s broad discretion to deny a motion to reopen deportation proceedings also applies to the attorney General’s discretion with regard to motions to reopen to apply for cancellation of removal. This article will explore the facts of Rios-Pineda, the reasoning behind the Supreme Court decision, and its effect as lasting precedent today.

Facts of INS v. Rios-Pineda

Before detailing the facts of the case, please note that suspension of deportation required 7 years of continuous presence, unlike the 10 years required for non-lawful permanent resident (LPR) cancellation of removal found in section 240A(b) [see article] of the Immigration and Nationality Act (INA). Furthermore, there was no “stop-time rule” [see blog] as there is for cancellation of removal under 240A(d).

The following are the facts of Rios-Pineda:

Respondents were a married couple and citizens of Mexico.
The husband illegally entered the United States in 1972, was apprehended, and left under threat of deportation in 1974.
The couple paid a smuggler to transport them illegally to the United States later in 1974.
The husband was apprehended by Immigration and Nationality Service (INS)1 agents in 1978, and granted permission to return to Mexico in lieu of deportation.
Although the husband was granted two subsequent extensions of his request to return voluntarily to Mexico, he declined to do so. INS opened deportation proceedings against the respondents. At this time, the respondents had a child who was a natural-born U.S. citizen.
In deportation proceedings in 1978, the couple conceded deportability but requested suspension of deportation. The Immigration Judge (IJ) ruled that the respondents were ineligible to apply for suspension of deportation on account of not having accrued seven years’ continuous physical presence. The IJ ordered the respondents deported.
The respondents appealed to the Board of Immigration Appeals (BIA), this time seeking to establish that their deportation violated the rights of their U.S. citizen child. The BIA dismissed the appeal.
In 1980, the respondents filed a petition for review with the United States Court of Appeals for the Eighth Circuit. The respondents asserted the same arguments that had been rejected by the BIA.
In 1982, the Eighth Circuit reversed the BIA and remanded for further proceedings in Rios-Pineda v. U.S. Dept. of Justice, INS, 720 F.2d 529 (8th Cir. 1983) [PDF version]. The Eighth Circuit did so in large part because, by this point, the respondents had accrued 7 years of physical presence, which served as a changed circumstance regarding their eligibility for suspension that did not exist when the BIA denied suspension. However, it is important to note that the respondents did not have 7 years’ continuous presence when they initially appealed to the Eighth Circuit.
The respondents moved to reopen proceedings with the BIA. At this time, the respondents had a second U.S. citizen child, and argued that their deportation would result in extreme hardship to both children (in addition to extreme hardship to the respondents).
The BIA denied the motion to reopen, in part because the respondents had only accrued the requisite physical presence and had a second U.S. citizen child because they had delayed departure by filing frivolous appeals. Furthermore, the BIA cited the nature of the respondents’ illegal entry along with other factors as weighing against the exercise of discretion in their favor.
The Eighth Circuit reversed the BIA again and directed it to reopen proceedings. The Supreme Court granted certiorari (decided to hear the case on appeal).

Supreme Court Decision in INS v. Rios-Pineda

In a unanimous decision authored by Justice Byron White, the Supreme Court reversed the Eighth Circuit’s decision because, it held, the Attorney General had the power to deny the motion to reopen for discretionary reasons even if the respondent(s) can establish a prima facie case for eligibility for suspension of deportation.

The Court noted that the old suspension of deportation remedy allowed the Attorney General to suspend the deportation of an alien who:

Was continuously physically present in the United States for 7 years;
Was of good moral character;
Demonstrated extreme hardship to him or herself and/or a U.S. citizen or lawful permanent resident (LPR) spouse, parent, or child.

The Supreme Court noted, however, that suspension of deportation was a discretionary form of relief. It held that even where an alien can establish a prima facie case for eligibility for suspension, the Attorney General has discretion to refuse to grant suspension.2

Although the mechanism for reopening proceedings was not in the suspension of deportation statutes, regulations guiding motions to reopen were in 8 C.F.R. 3.2 (see PDF of the current 8 C.F.R. 1003.2, which still addresses motions to reopen). In order to be eligible for reopening under the regulation, circumstances must have arisen subsequent to the original hearing that would affect the alien’s eligibility for suspension of deportation.

The Supreme Court rejected the Eighth Circuit’s contention that the denial of the motion to reopen was an impermissible exercise of the Attorney General’s discretion concerning motions to reopen. The Supreme Court concurred with both of the BIA’s main arguments.

The Appeals were Frivolous

The Supreme Court held that the BIA’s rejection of the motion to reopen on account of the respondents’ having only satisfied the continuous physical presence requirement through their filing of frivolous appeals was not an abuse of discretion. The Supreme Court noted that, although the Eighth Circuit held that the appeals were not frivolous because they resulted in further proceedings, the BIA was correct that the appeals were frivolous and without merit because no substance was found in any of the points raised on appeal. Importantly, the decision stated:

The purpose of an appeal is to correct legal errors which occurred at the initial determination of deportability; it is not to permit an indefinite stalling of physical departure in the hope of eventually satisfying legal prerequisites.

The decision noted the Attorney General’s legitimate interest in not incentivizing such stalling. It noted that the Attorney General had enough difficulty in administering immigration laws without being forced to take on meritless appeals contrived to delay proper proceedings.

Rightful Exercise of Discretion Based on Flagrant Violations of Immigration Laws

The Supreme Court held that the Attorney General did not abuse his discretion in denying reopening based on the respondents’ flagrant violations of the immigration laws. While the Supreme Court acknowledged that all aliens who are illegally present have, by definition, violated the immigration laws; “it is untenable to suggest that the Attorney General has no discretion to consider their individual conduct and to distinguish among them on the basis of the flagrancy and nature of their violations.”

Conclusion

The Supreme Court held that the BIA’s decision to deny the motion to reopen was neither arbitrary nor unreasonable, but rather was grounded in legitimate concerns about the administration of the immigration laws.3

Principle Applicable for Motions to Reopen to Seek Withholding and Asylum

In 1988, the Supreme Court in INS v. Abudu, 485 U.S. 94, 108 S.Ct. (1988) [PDF version] held that a motion to reopen for purpose of applying for withholding of removal and asylum [see article] can be denied in the discretion of the Attorney General as was set forth in Rios-Pineda.4 The decision stated clearly that the denial of a motion to reopen under the discretionary grounds described in Rios-Pineda is reviewed under the “abuse of discretion” standard.

Applicability of INS v. Rios-Pineda Today

The specific situation that was addressed in Rios-Pineda could not occur under the current statutes and regulations regarding cancellation of removal. This is because of the “stop-time rule” found in section 240A(d), which ceases the accumulation of continuous physical presence when an alien is served with a Notice to Appear (NTA). Furthermore, any departure from the United States that occurs under a grant of voluntary departure will sever continuous physical presence.5 Please follow this link to learn more about the stop-time rule as it applies to eligibility for cancellation of removal for non-LPRs.

However, the holding Rios-Pineda guides how discretionary denials of motions to reopen for purpose of applying for cancellation of removal will be reviewed. Rios-Pineda buttressed the principle that substantial deference will be given to the Attorney General in exercising discretion to deny reopening. The decision allows for the AG to decline reopening without assessing the applicant’s eligibility for the relief that he or she is seeking. Importantly, Rios-Pineda allows the AG to consider the severity of the applicant’s immigration violations in denying reopening.

It is important to note though that, while Rios-Pineda gives the Attorney General broad authority to deny reopening, this authority is not unlimited. Note that the Rios-Pineda decision considered whether the denial involved “the unreasoned or arbitrary exercise of discretion.” The decision also specifically concurred with the BIA’s assessment of the severity and flagrancy of the immigration violations at question in Rios-Pineda. Therefore, nothing in the decision precludes a Court from finding that, in a similar case with different facts underlying a decision to deny reopening, the Attorney General could be found to have abused his or her discretion.6

These principles are enshrined in the regulations regarding motions to reopen or reconsider found in 8 C.F.R. 1003.2. [link] 8 C.F.R. 1003.2(a) provides that:

The decision to grant or deny a motion to reopen or reconsider is within the discretion of the BIA;
The BIA has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

In these regulations, we see the holding in Rios-Pineda is incorporated in the regulations governing motions to reopen.

Conclusion — Lasting Effects of INS v. Rios-Pineda

The Rios-Pineda decision, further supported by the Abudu decision, grants the Attorney General and the BIA broad discretion to deny motions to reopen. This effectively means that, even where changed circumstances suggest that an alien will be eligible for relief (e.g. cancellation of removal, withholding of removal and asylum, etc.), there is no guarantee that a motion to reopen will be granted. This is most likely to have a negative effect on aliens who violated the immigration laws in flagrant ways (for example, paying to be smuggled into the country as was the case in Rios-Pineda).

An alien seeking to reopen proceedings should always consult with an experienced immigration attorney in matters of removal and deportation defense [see category]. An experienced immigration attorney will be able to assess if there is a viable case for reopening, assist in preparing the motion to reopen, and be prepared to appeal the denial of a motion to reopen if there are grounds to do so.

  1. The functions of the INS have been taken over by various agencies under the umbrella of the Department of Homeland Security (notably CBP, ICE, and USCIS).
  2. The decision cites: INS v. Jong Ha Wang, 450 U.S. 139, 144 n. 5, 101 S.Ct. 1027, 1030, n. 5, 67 L.Ed.2d 123 (1981); Jay v. Boyd, 351 U.S. 345, 353, 76 S.Ct. 919, 924, 100 L.Ed. 1242 (1956)
  3. Rios-Pineda also cites INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584 (1984) which upheld the Attorney General’s discretion to deny reopening where he interpreted the “continuous physical presence requirement” requirement strictly.
  4. In Abudu, the Supreme Court upheld the BIA’s decision to deny the motion to reopen because the movant did not reasonably explain his failure to state his asylum claim at the onset.
  5. See e.g., Landin-Zavala v. Gonzalez, 488 F.3d 1150 (9th Cir. 2007)
  6. Also note: Kucana v. Holder, 558 U.S. 233 (2010) [holding that motions to reopen are subject to judicial review notwithstanding other aspects of cancellation being statutorily exempt because motions to reopen are governed solely by regulations]