Introduction

On June 15, 2015, the Supreme Court of the United States issued a decision titled Mata v. Lynch, 135 S.Ct. 2150 (2015) [PDF version]. In the decision, the Supreme Court held that the Courts of Appeal have jurisdiction over motions to reopen removal proceedings even where the motion was denied due in part to its having been untimely filed. Furthermore, the Supreme Court held that courts retain jurisdiction over the denial of such a motion to reopen even where the Board had also declined to exercise its discretionary sua sponte (“on its own motion”) authority to reopen.

The majority opinion was authored by Justice Elena Kagan. Justice Clarence Thomas filed a solo dissenting opinion. In this article we will analyze both the majority opinion of Justice Kagan and, in brief, the dissenting opinion of Justice Thomas. Next, we will examine the unpublished Fifth Circuit decision issued on remand from the Supreme Court decision in Mata. Finally, we will analyze subsequent circuit court decisions that cite to the Mata decision.

Decision of the Court: Justice Kagan

In the forthcoming sub-sections, we will review the opinion of the Court in Mata that was authored by Justice Kagan.

Facts and Procedural History

The petitioner, Noel Reyes Mata, a native and citizen of Mexico, was an unlawful resident alien. He was convicted of assault under the Texas Penal Code. Subsequent to the assault conviction, the Department of Homeland Security (DHS) initiated removal proceedings against him. The Immigration Judge ordered Mata removed at the conclusion of the removal proceedings.

Mata’s counsel filed a notice of appeal with the BIA, and in so doing, indicated that he would submit a written brief stating grounds for reversing the Immigration Judge’s decision. However, the attorney never filed the brief, and the Board dismissed the appeal.

Mata obtained new counsel. More than 100 days later Mata filed a motion to reopen removal proceedings under section 240(c)(7)(A) of the Immigration and Nationality Act (INA). The DHS opposed the motion on the ground that it was untimely because Mata had failed to file it within 90 days of the Board’s decision dismissing his appeal. In response, Mata acknowledged that his motion was being filed outside of the 90 day limit, but he argued that his motion to reopen was “not time-barred” because the ineffective assistance provided by his previous attorney constituted an “exceptional circumstance” that should excuse the lateness of the motion.

The Board reaffirmed its previous decisions holding that it had the authority to equitably toll, or forgive, the 90-day period for filing motions to reopen in certain cases that involved ineffective assistance of counsel. However, the Board determined in the instant case that Mata was not entitled to equitable tolling because he failed to show prejudice resulting from his previous attorney’s deficient performance. For this reason, the Board agreed with the DHS’s position and rejected the motion as untimely filed. In what would be a key point, the Board also declined to reopen based on its regulatory authority under 8 C.F.R. 1003.2(a) to reopen proceedings sua sponte, that is, on its own initiative.

Mata appealed the Board’s denial of his motion to reopen removal proceedings to the United States Court of Appeals for the Fifth Circuit. Mata argued that he was entitled to equitable tolling due to the ineffective assistance rendered by his original attorney. However, the Fifth Circuit declined to address the merits of the respondent’s claim. It stated as follows in its unpublished (meaning non-precedential) decision in Mata v. Holder:

“In this circuit, an alien’s request for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte. Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). As the BIA has complete discretion in determining whether to reopen sua sponte under 8 C.F.R § 1003.2(a), and we have no meaningful standard against which to judge that exercise of discretion, we lack jurisdiction to review such decisions. Id.”

Thus, the Fifth Circuit’s decision was premised on the principle that it did not have jurisdiction to review the Board’s refusal to exercise its sua sponte authority to reopen cases.

We have uploaded the full Fifth Circuit decision [PDF version]. However, please note that not only was the decision unpublished, the Supreme Court reversed it in the instant case.

Justice Kagan noted that every other circuit had affirmed its jurisdiction to decide an appeal where an alien sought equitable tolling of the statutory time limit to file a motion to reopen. Accordingly, the Fifth Circuit decision resulted in a split between it and its sister circuits.

Mata appealed the Fifth Circuit decision to the Supreme Court, which agreed to hear the case. Interestingly, the government actually agreed with Mata’s position that the Fifth Circuit had jurisdiction to hear the case. For this reason, the Supreme Court appointed an amicus curiae (“friend of the court”) to defend the Fifth Circuit’s judgment.

Analysis and Decision of the Court

Justice Kagan began by citing to Kucana v. Holder, 558 U.S. 233, 253 (2010) [PDF version]. In Kucana, the Supreme Court held that federal circuit courts have jurisdiction when an alien appeals from the BIA’s denial of a motion to reopen. Justice Kagan noted that this is reflected in section 242(a)(1) of the INA, which affords courts the jurisdiction to review final orders of removal, and in Section 242(b)(6), which states in pertinent part: “[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order.”

Justice Kagan stated that “[n]othing changes when the Board denies a motion to reopen because it is untimely-nor when, in doing so, the Board rejects a request for equitable tolling.” Justice Kagan took the position that neither the INA nor “our century-old practice” makes jurisdiction contingent on the BIA’s reason for denying a motion to reopen.

Kucana had left open the question of whether courts have jurisdiction to review the Board’s use of discretionary sua sponte authority (see 558 U.S., at 251, n. 18). The Supreme Court noted that federal circuit courts have generally held that they lack the authority to review the Board’s decision to decline to exercise its sua sponte authority. The Fifth Circuit reached this conclusion in Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-250 (5th Cir. 2005) [PDF version]. Justice Kagan stated that even if it is assumed, for argument’s sake, that this is correct, it does not strip the court of jurisdiction to review the statutory denial of the motion to reopen. Rather, Justice Kagan stated, the effect of this position would be “that judicial review ends after the court has evaluated the Board’s ruling on the alien’s motion.” She made clear that lacking jurisdiction over one thing, namely sua sponte decisions, does not affect jurisdiction over another, here being the alien’s request for reopening.

Justice Kagan stated that “[i]t follows, as the night the day, that the Court of Appeals had jurisdiction over this case.” She stated that the alien filed a motion to reopen, and in so doing, “confer[red] jurisdiction on the appellate court under Kucana.” That the Board denied for timeliness reasons did not strip the Fifth Circuit of jurisdiction. That the Board declined to exercise its sua sponte authority to reopen also made no difference regarding jurisdiction over Mata’s motion to reopen. As Justice Kagan explained, “that extra ruling does not matter.”

Justice Kagan took the position that the Fifth Circuit reached its erroneous conclusion by construing Mata’s motion as something it was not, that is, “an invitation for the BIA to exercise” its sua sponte authority.

The amicus’s defense of the Fifth Circuit’s judgment relied on what Justice Kagan described as a “merits-based premise.” Specifically, the amicus curiae argued that the INA forbids equitable tolling no matter how exceptional the circumstances. For this reason, the amicus curiae argued that the Fifth Circuit acted permissibly in “recharacteriz[ing]” Mata’s pleadings. In this case, the amicus curiae argued, the Fifth Circuit merely interpreted Mata’s request for an unavailable form of relief as actually being for a form of relief that he was eligible for.

However, the Supreme Court held that, even assuming the amicus’s arguments about the respondent’s ineligibility for reopening under the INA were correct, the correct course of action for the Fifth Circuit would have been for it to assert jurisdiction over the case, explain why the alien was ineligible, and affirm the Board’s decision. Essentially, the majority took the position that the alien’s eligibility for reopening was a distinct issue from jurisdiction. Justice Kagan explained that although courts can sometimes construe one kind of filing as another, “that established practice does not entail sidestepping the judicial obligation to exercise discretion.”

To be clear, it is important to note that the Supreme Court did not render an opinion on whether the INA allows equitable tolling of the 90-day period, and Justice Kagan further noted that the Fifth Circuit itself never explicitly took that position. Justice Kagan observed, however, that every other circuit that had addressed the matter took the position that the Board may sometimes equitably toll the time limit for an alien’s motion to reopen. Without taking a position on the issue, Justice Kagan stated that if the Fifth Circuit’s position was, in fact, that the time limit cannot be equitably tolled, by construing Mata’s appeal as a request for sua sponte reopening, it had “effectively insulated a circuit court from [the Supreme Court’s] review.

For the foregoing reasons, the Supreme Court reversed the judgment of the Fifth Circuit and remanded the case for further proceedings.

Solo Dissent: Justice Thomas

Justice Clarence Thomas filed a lone dissenting opinion. Although his dissent is not law, it is worth examining in brief.

First, Justice Thomas took the position that the majority failed to distinguish between “construing” a court filing and “recharacterizing” a court filing. Justice Thomas defined the former as making sense of an ambiguous filing and the latter as treating an unambiguous filing as something it is not. While he described the former practice as “routine,” he described the latter as something that should only be done in exceptional circumstances (citing to Castro v. United States, 540 U.S. 385-86 (2003)).

Justice Thomas noted that Mata’s motion to reopen did not expressly state whether he was seeking statutory relief or requesting sua sponte reopening. He took the position that had the Fifth Circuit merely construed Mata’s appeal as requesting sua sponte relief and explained why, it may not have been in error. However, took the position that the Fifth Circuit erred by applying a categorical rule that all motions to reopen that were untimely filed should be construed as motions for sua sponte reopening. Justice Thomas noted that the Fifth Circuit’s rule “would appear to foreclose a litigant from ever filing an untimely statutory motion to reopen removal proceedings seeking equitable tolling, as well as to invite improper recharacterization [as opposed to construing] in the event any such motion is filed.”

While Justice Thomas agreed with the majority that the Fifth Circuit erred, he disagreed with the majority’s reasoning that the Fifth circuit had a “judicial obligation to exercise discretion.” Justice Thomas took the position that courts only have an obligation to exercise jurisdiction when they actually have jurisdiction, and that they do not have an obligation to “seek out jurisdiction.” Justice Thomas cited to DaimlerChrysler Corp v. Cuno, 547 U.S. 332 (2006), wherein the Court held that courts should presume that they lack jurisdiction unless contrary evidence appears affirmatively in the record.

Justice Thomas stated that he would have vacated the Fifth Circuit’s decision and remanded the case for consideration of the BIA’s judgment “without the burden of what appears to be a categorical rule demanding that Mata’s motion be construed (or recharacterized) as a request for sua sponte reopening. Justice Thomas dissented because the “majority does more than this by reversing the judgment [of the Fifth Circuit].”

Subsequent Developments from the Fifth Circuit

In a different case, the Fifth Circuit held in Lugo-Resendez v. Lynch, 831 F.3d 337, 343-44 (5th Cir. 2016) [PDF version], that motions to reopen are in fact subject to equitable tolling.

The Fifth Circuit decided Mata’s case on remand in an unpublished decision titled Mata v. Sessions, —- Fed.Appx. —— (5th Cir. 2017) [PDF version]. On remand, the Fifth Circuit explained that the Board had denied Mata’s motion to reopen upon finding that even if Mata’s attorney was derelict in failing to file a brief, Mata could not establish that he was prejudiced as a result because he would have been unable to show that he was eligible for cancellation of removal even if such a brief had been filed. The BIA’s decision was premised on the fact that Mata’s assault conviction precluded him from eligibility for cancellation of removal, and Mata had failed to allege facts establishing that his removal would result in exceptional and extremely unusual hardship to his U.S. citizen children.

Subsequent to the BIA decision, the Fifth Circuit noted that in Gomez-Perez v. Lynch, 829 F.3d 323, 328 (5th Cir. 2016) [PDF version], it had held that Mata’s specific assault conviction (under section 22.01(a)(1) of the Texas Penal Code Ann.) was not a crime involving moral turpitude (CIMT). Accordingly, Mata’s conviction did not preclude him from eligibility for cancellation of removal on remand before the Fifth Circuit, thus eliminating the first ground on which the Board found that he was not prejudiced by his ineffective counsel. However, the Fifth Circuit held that Mata abandoned any challenge to the BIA’s second basis for the denial, that he had not established that his removal would result in exceptional and extremely unusual hardship to his U.S. citizen children. Accordingly, the Fifth Circuit denied Mata’s petition to review the BIA’s denial of his motion to reopen.

Published Decisions Examining Mata

According to Westlaw as of June 6, 2017, Mata has been cited by courts on 168 occasions subsequent to its issuance. In this section, we will examine in brief a few interesting examples.

First, in the previous section, we noted the Fifth Circuit decision in Lugo-Resendez. There, the Supreme Court adopted the position that the INA permits equitable tolling of the 90-day time limit for filing motions to reopen. As Justice Kagan noted, it was unclear what the Fifth Circuit’s view of this issue was in the initial Mata v. Holder decision.

In Perez Batres v. Lynch, 796 F.3d 157 (1st Cir. 2015) [PDF version], the First Circuit held that Mata does not give courts jurisdiction over cases where the alien has not yet exhausted all administrative remedies.

In Butka v. U.S. Attorney General, 827 F.3d 1278 (11th Cir. 2016) [PDF version], the Eleventh Circuit rejected an argument that Mata instructed federal circuit courts to assert jurisdiction over legal claims related to or underlying requests for sua sponte reopening. Specifically, Butka argued that if a court determines that the BIA made a legal error, it is required to remand to the BIA for consideration of whether to exercise sua sponte authority in light of the correct legal framework. The Eleventh Circuit reaffirmed the position it had taken prior to Mata in Lenis v. U.S. Attorney General, 525 F.3d 1291, 1293-94 & n.7 (11th Cir. 2008) [PDF version], that it does not have jurisdiction over motions for sua sponte reopening. Butka filed a Petition for Certiorari with the Supreme Court on December 16, 2016 [PDF version]. The Supreme Court has not yet decided if it will hear the case. We will update the site when more information becomes available.

Finally, the Seventh Circuit referenced Mata briefly in Sanchez v. Sessions, —- F.3d —— (7th Cir. 2017). In Sanchez, the Seventh Circuit cited to Mata in holding that it had jurisdiction over the BIA’s denial of a motion to reopen even where it would not have jurisdiction over the alien’s underlying request for cancellation of removal. In this case, the Seventh Circuit stayed the alien’s removal pending a ruling on the alien’s appeal of the denial of the motion to reopen. Please see our full article on Sanchez to learn more [see article].

Conclusion

Mata not only affirms the authority of federal circuit courts to assert jurisdiction over motions to reopen it also enshrines it as a responsibility even in cases where the alien appears to be clearly ineligible. The Mata decision left open a couple of key questions. First, the Supreme Court did not decide whether the INA allows for tolling of the 90-day period to file a motion to reopen. However, federal circuit courts — including now the Fifth Circuit — have generally found that the 90-day statutory period can be equitably tolled. Second, the Supreme Court did not address when — if ever — courts have authority to review the Board’s decision not to exercise its sua sponte authority to reopen. The Eleventh Circuit addressed the issue in some detail in Butka, and it is possible that the Supreme Court will consider the issue at some point, whether in Butka or in a different case.

It is important for an alien to retain an experienced immigration attorney throughout the entire process of immigration proceedings. An experienced attorney will be able to assist the alien through each step of the process including, if necessary, filing a motion to reopen.