Opinion analysis: Distinguishing between jurisdiction over (and the merits of) untimely immigration appeals
In an eight-to-one ruling handed down on Monday, the Supreme Court reaffirmed the distinction between jurisdiction to entertain an appeal and the merits of the appeal, holding in Reyes Mata v. Lynch that the Fifth Circuit wrongly ruled that it lacked jurisdiction to consider an immigrant’s appeal of the Board of Immigration Appeals’ (BIA’s) denial of his untimely motion to reopen his removal proceedings. As Justice Elena Kagan wrote for the majority, “Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.” Although the majority sidestepped the underlying substantive question raised by Mata’s appeal — whether the ninety-day timeline for filing motions to reopen is subject to equitable tolling — its affirmation that the courts of appeals have jurisdiction to answer that question cleans up a ten-to-one circuit split, and opens the door for immigrants in Louisiana, Mississippi, and Texas to pursue that argument on the merits.
As we explained in our argument preview, the case raises a hyper-technical question of immigration jurisdiction. The petitioner, Noel Reyes Mata, had filed an untimely motion to reopen his removal proceedings before the BIA, arguing that he was entitled to equitable tolling of the ninety-day deadline for such motions in light of his prior counsel’s ineffectiveness. The BIA agreed that the deadline could be equitably tolled, but held that such tolling wasn’t warranted in Mata’s case on the ground that he wasn’t entitled to relief on the merits. Mata appealed that decision to the Fifth Circuit, which held, based upon its 2008 ruling in Ramos-Bonilla v. Mukasey, that it lacked jurisdiction over such an appeal. Specifically, Ramos-Bonilla had suggested that the ninety-day deadline was not subject to equitable tolling, and so a motion to reopen based upon equitable tolling had to be construed instead as a non-statutory 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. When Mata sought further review in the Supreme Court, he gained the support of the Solicitor General, who agreed with him that the court of appeals had jurisdiction to consider whether the ninety-day deadline is subject to equitable tolling — and, if so, whether Mata is entitled to such relief. Thus, when the Court agreed to take Mata’s case, it appointed an amicus to defend the decision below.
On the merits, the Court made quick work of the Fifth Circuit’s reasoning. As it explained, under the Court’s 2008 decision in Kucana v. Holder, the court of appeals has jurisdiction over BIA denials of motions to reopen, regardless of the reason why the motion is denied: “Under the [immigration laws], as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue.” (Full disclosure: I co-authored and signed an amicus brief in support of the Petitioner in Kucana.)
The Court then turned to the principal argument offered by the Court-appointed amicus in support of the decision below — that, if the Fifth Circuit correctly believed that the immigration laws do not allow equitable tolling of the ninety-day deadline in any case, then the only way the BIA could have entertained Mata’s claim was by acting sua sponte, action over which the court of appeals truly lacked jurisdiction. As the Court explained, though, “that conclusion is wrong even on the assumption — and it is only an assumption — that its core premise about equitable tolling is true. If the [relevant statues] preclude Mata from getting the relief he seeks, then the right course on appeal is to take jurisdiction over the case, explain why that is so, and affirm the BIA’s decision not to reopen.” Put another way, “[t]he jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper).” And so, although the Court “express[ed] no opinion as to whether or when the [relevant statute] allows the Board to equitably toll the 90-day period to file a motion to reopen,” it made clear that the court of appeals has jurisdiction to answer that question no matter how it ultimately does so.
In a narrow, three-page dissent, Justice Clarence Thomas took issue with the majority’s assumption that Mata’s original claim for relief before the BIA was clearly a statutory motion to reopen, and not, as the amicus argued the Fifth Circuit had construed it, an invitation to the BIA to act sua sponte. Thus, although he agreed with the majority that the Fifth Circuit erred in applying a “categorical rule that all motions to reopen that would be untimely under [the relevant statute] must be construed as motions for sua sponte reopening of the proceedings,” he would have remanded the matter to the Fifth Circuit to consider, on a case-specific basis, whether Mata’s original motion to reopen is better understood as a statutory claim (over which the Fifth Circuit clearly would have appellate jurisdiction) or an invitation to the BIA to act on its own authority (over which, at least in Justice Thomas’s view, the Fifth Circuit would lack appellate jurisdiction).
Ultimately, though, there appears to be less daylight between the majority and dissenting opinions than might otherwise appear. Going forward, the decision clarifies that the courts of appeals have jurisdiction over any BIA denials of statutory motions to reopen, so long as the immigrant’s claim is construed as such. Given that this is already the rule in ten of the eleven circuits that hear immigration appeals, and given that the Justices left for another day the larger question underlying Mata’s case — whether the ninety-day deadline for filing motions to reopen is subject to equitable tolling in the first place — it seems unlikely that the case will go down as one of the more memorable decisions from the Court’s October 2014 Term.
Plain English: When an immigrant seeks to challenge his pending deportation, but misses a filing deadline because of his prior lawyer’s incompetence, the courts of appeals have the power to decide whether he should nevertheless be allowed to pursue his claim before the federal agency that hears immigration appeals.