Argument preview: What happens when deadlines in removal proceedings are missed due to ineffective assistance of counsel?
For the better part of twenty years, the jurisdiction of the federal courts of appeals to review different decisions by the Board of Immigration Appeals (BIA) has been something of a minefield. That morass returns to the Court on Wednesday in Mata v. Lynch, the final oral argument of the current Term. But whereas the question presented in this case – whether courts of appeals have jurisdiction to review the BIA’s denial of an immigrant’s motion to reopen his removal proceedings based upon a claim that his original counsel was ineffective – may sound difficult, not even the federal government is defending the Fifth Circuit precedent at issue (which answered that question in the negative and thereby created a ten-to-one circuit split). Thus, the last hour of argument before the Justices until October may be entirely anticlimactic – and not just because of the contrast with the other cases the Court is set to hear this week.
Petitioner Noel Reyes Mata is an undocumented immigrant who pleaded guilty in 2010 to assaulting his wife, a crime that involved “family violence” under Texas law. The day after his plea, Mata was placed into removal proceedings by the Department of Homeland Security. Although Mata conceded his removability on the basis of his Texas conviction, he applied for cancellation of removal in light of, among other things, the hardship his removal would present to his children. The immigration judge denied Mata’s application and ordered Mata removed to Mexico, finding that the Texas offense was a “crime involving moral turpitude,” which rendered Mata ineligible for cancellation of removal. Through his counsel, Mata filed a timely appeal and noted that a brief in support would be forthcoming, but no such brief was ever filed – even after the BIA denied Mata’s counsel’s motion for an extension. Thus, in September 2012, the BIA summarily dismissed Mata’s appeal for failing to identify the basis upon which it had been taken.
Acting through new counsel, Mata filed a motion to reopen his removal proceedings before the BIA in January 2013, arguing that his prior counsel had been ineffective in failing to timely file a brief in support of his appeal. And although Mata’s motion to reopen was filed after the ninety-day statutory deadline for such claims, Mata’s new counsel argued that he was entitled to equitable tolling of that deadline owing to his prior counsel’s ineffectiveness. The BIA disagreed and denied the motion. Although the ninety-day deadline was subject to equitable tolling, in the BIA’s view, Mata could not make out a claim for such relief because he could not show how his original counsel’s ineffectiveness had resulted in prejudice. As the BIA explained, Mata offered no explanation for why his Texas conviction was not a “crime involving moral turpitude,” and, in any event, his claimed hardship was not the kind of “exceptional and extremely unusual hardship” required for cancellation of removal.
Mata then filed a petition for review in the Fifth Circuit, which dismissed it for lack of jurisdiction. Specifically, the Fifth Circuit relied upon its 2008 ruling in Ramos-Bonilla v. Mukasey, which had held that a motion to the BIA to equitably toll the ninety-day deadline based upon ineffective assistance of counsel should be treated as an invitation to the BIA to exercise its “complete discretion” to reopen removal proceedings sua sponte – discretion that is not reviewable by the courts of appeals. Because Ramos-Bonilla thereby foreclosed the court’s jurisdiction, the Fifth Circuit dismissed Mata’s appeal.
After unsuccessfully pursuing rehearing en banc, Mata then filed a petition for certiorari, at which point he received an unlikely boost from the federal government. Whereas the government had argued before the Fifth Circuit that it lacked jurisdiction under Ramos-Bonilla, it now conceded that Ramos-Bonilla was wrongly decided – and that ““[t]here are adequate standards to be applied by a court of appeals in reviewing [BIA] decisions rejecting arguments for equitable tolling based on ineffective assistance of counsel.” Although the government urged the Justices to “GVR” (grant, vacate, and remand) Mata’s case, or, in the alternative, to nevertheless deny certiorari on the merits, the Court granted plenary review, and appointed Houston-based lawyer William R. Peterson as an amicus to defend the decision below.
As a result of the maneuverings at the certiorari stage, the briefs on the merits are focused almost entirely on the Fifth Circuit’s jurisdiction – and not on the underlying merits, or possible lack thereof, of Mata’s motion to reopen. Thus, Mata’s opening brief offers two principal contentions: that the courts of appeals have plenary jurisdiction to review BIA denials of motions to reopen, especially after the Supreme Court’s 2010 decision in Kucana v. Holder; and that the Fifth Circuit’s ruling to the contrary was based upon the flawed analytical step of construing a motion to reopen (a remedy Congress expressly provided by statute to non-citizens in removal proceedings) as an invocation of the BIA’s regulatory authority to reopen cases sua sponte. Whatever review ought to be available in cases in which the BIA reopens on its own motion, Mata explains, there can be no question that Congress intended the courts of appeals to review cases in which the BIA reviews a petitioner’s motion for such relief. The BIA’s decision may still be entitled to at least some deference, but not the absolute deference contemplated by the court of appeals.
The brief of the federal government, in support of Mata, covers much of the same terrain. Although the government argues somewhat more forcefully than Mata that the BIA’s denial of a motion to reopen may only be reviewed for abuse of discretion, the key is that it can (and, thus, should) be reviewed under that standard. As the government explains, “[j]udicial review of the Board’s denial of a motion to reopen as untimely based on the Board’s conclusion that equitable tolling of the alien’s deadline is unwarranted is not materially different from judicial review of the Board’s denial of motions to reopen more generally.”
Whereas the top-side briefs thereby assume that the jurisdiction of the court of appeals doesn’t turn on the merits of Mata’s motion to reopen (or his entitlement to equitable tolling), the brief of the Court-appointed amicus in defense of the Fifth Circuit argues, to the contrary, that it does – and that the Supreme Court must therefore answer the underlying question of whether the ninety-day deadline is subject to equitable tolling. In particular, the Court-appointed amicus contends that, because the ninety-day deadline was not subject to equitable tolling, the BIA had no authority to grant Mata’s motion to reopen – and so could only entertain that motion by acting sua sponte. Ramos-Bonilla is correct, the Court-appointed amicus argues, because the BIA’s discretion to reopen sua sponte is unfettered – and thus its decision to reopen an untimely motion to reopen on any ground cannot meaningfully be reviewed.
In reply, both Mata and the federal government argue, to the contrary, that the Fifth Circuit had jurisdiction over the BIA’s denial of equitable tolling regardless of whether that decision was correct. That is, whether or not the ninety-day deadline is subject to equitable tolling (and, if it is, whether a movant is entitled to such relief), the courts of appeals have the power to review the BIA’s answer to that question. As the federal government concludes, “incorrectly puts the merits cart before the jurisdictional horse.” And whereas the government’s reply goes on to explain why the Fifth Circuit had jurisdiction even if the ninety-day deadline could not be equitably tolled, Mata’s reply goes one important step further, explaining why, on the merits, the BIA was correct to conclude that the ninety-day deadline is subject to equitable tolling. Although the government’s reply brief goes to great length to explain why the Justices need not resolve that issue, it ultimately agrees with Mata that, in “appropriate cases,” the ninety-day deadline may be equitably tolled. Where Mata and the Solicitor General disagree, in the end, is only whether Mata’s is such a case – an issue both parties agree should be left for the Fifth Circuit in the first instance.
Thus, the real question heading into Wednesday’s argument seems to be whether the Court-appointed amicus will find any support on the bench for his view of the relationship between the underlying “merits” question (whether the ninety-day deadline for filing a motion to reopen removal proceedings is subject to equitable tolling in the first place) and the jurisdiction of the court of appeals to review a BIA decision to not toll that deadline. If not, then it is difficult to imagine the Justices going any further than what Mata and the federal government urge – to vacate and remand the decision below so that the Fifth Circuit can resolve the former question in the first instance, unhindered by its own jurisdictional baggage.
Plain English: When an immigrant in deportation proceedings misses a filing deadline before the federal agency overseeing deportation appeals because of his lawyer’s misconduct, do the federal courts of appeals have the power to review the immigrant’s claim that the agency should have excused the missed deadline and decided the substantive claim at the heart of the immigrant’s appeal? In this case, the federal government and the petitioner both argue that the answer should be “yes,” while a friend of the Court appointed to defend the decision below argues that the answer should be “no.”