Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2006

Cruz v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-2764




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 05-2764


                       JOSE CRUZ,
                          Petitioner

                             v.

                 ATTORNEY GENERAL
                OF THE UNITED STATES,
                            Respondent


           Petition for Review of an Order of the
            United States Department of Justice
               Board of Immigration Appeals
                  (BIA No. A45-867-307)


                   Argued March 7, 2006
      Before: RENDELL and AMBRO, Circuit Judges,
               and SHAPIRO, District Judge*

                    (Filed June 21, 2006)

* Honorable Norma L Shapiro, Senior District Court Judge for
the Eastern District of Pennsylvania, sitting by designation.
Regis Fernandez [ARGUED]
18 Green Street
Newark, NJ 07102
   Counsel for Petitioner

Jonathan Potter [ARGUED]
Michael P. Lindemann
John D. Williams
Lyle D. Jentzer
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.P. Box 878, Civil Division
Washington, DC 20044
   Counsel for Respondent


                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Jose Cruz, a citizen of the Dominican Republic, was
ordered removed from the United States based on his conviction
for a “crime involving moral turpitude,” as defined by the
Immigration and Nationality Act (“INA”). The New Jersey
Superior Court subsequently vacated the conviction supporting
Cruz’s removal order, and Cruz sought to reopen his
immigration proceedings. The Board of Immigration Appeals
(“BIA”) denied his motion to reopen on the grounds that it was
untimely and this petition for review followed.

                              2
        Normally, we could easily affirm a discretionary decision
of the BIA denying a motion to reopen based upon
untimeliness. In this case, there is no question that Cruz filed
his motion out of time. Nor is there any question that the BIA
treated Cruz’s motion to reopen as a routine one in which the
only issue was lateness. We find, however, that the current
situation presents anything but a normal motion to reopen that
lends itself to a straightforward analysis.

        Cruz’s motion to reopen is based on a single argument:
because his conviction has been vacated, he is no longer subject
to removal for committing a crime involving moral turpitude.
The BIA has adopted, and we have previously upheld, specific
guidelines for considering whether an alien remains “convicted”
under the INA even after a court has vacated the alien’s
conviction. Pinho v. Gonzales, 

, 209-10 (3d Cir.
2005); In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003).
In cases where the BIA has found an alien’s conviction vacated
for purposes of the INA, it has routinely considered this fact to
be an “exceptional situation” that provides the basis for granting
a motion to reopen sua sponte, without regard to the timing of
the filing. Curiously, in this case, the BIA did not refer in any
way to the distinctive aspect of Cruz’s motion, namely, that a
court had vacated his conviction. Nor did it refer to Pickering,
let alone conduct an analysis under it as to whether Cruz
remained “convicted” under the INA.

       We conclude that the BIA should not have ignored the
question of whether Cruz is still removable by virtue of his
vacated conviction. Furthermore, we are not certain that we can
address this issue ourselves because, under the INA, our
jurisdiction to review a final order of the BIA is restricted when

                                3
an alien is removable by virtue of a conviction for moral
turpitude. 8 U.S.C. § 1252(a)(2)(C). Thus, the scope of our
jurisdiction depends on whether Cruz remains removable due to
his vacated conviction. This case includes a further analytical
wrinkle because the government contends that, even if Cruz is
not “convicted” for immigration purposes, and our jurisdiction
therefore not limited by § 1252(a)(2)(C), we lack the power to
review the BIA’s unfettered discretion to decline to reopen
proceedings sua sponte. This last argument presents an
additional layer of difficulty, but it is one that we ultimately
need not explore.

        Our jurisdiction is the threshold issue in this case, and it
is one beyond which the BIA’s opinion, by virtue of its failure
to consider whether Cruz remains convicted for immigration
purposes, prevents us from moving. Without the BIA’s view as
to whether Cruz still has the requisite “conviction” under the
INA for his removal, we cannot determine our own jurisdiction.
Principles of administrative law require us to remand this case
to the BIA to give it the opportunity to apply Pickering in the
first instance and to decide, based on the outcome of this
analysis, whether it should exercise its sua sponte authority to
reopen Cruz’s case. Nonetheless, we write precedentially
because we believe our analysis to be instructive.



               I. Facts and Procedural History

       Jose Cruz is a native and citizen of the Dominican
Republic who became a lawful permanent resident of the United
States on June 15, 1997. On September 4, 1998, Cruz was

                                 4
arrested in Union County, New Jersey for promoting
prostitution. He pled guilty to the offense in 1999 and was
sentenced to two years of probation, which he served without
incident.

       Near the end of 2001, Cruz traveled to the Dominican
Republic to visit his family. Upon his return to the United
States at Newark International Airport on March 4, 2002,
immigration officials placed Cruz in removal proceedings,
charging that he was inadmissible due to his conviction.
Because there was no question that promoting prostitution is a
crime of moral turpitude under the INA, or that Cruz had been
validly convicted for this offense, the Immigration Judge (“IJ”)
ordered Cruz removed from the United States at a merits
hearing on January 23, 2003. The sole basis for the removal
order was Cruz’s 1999 conviction. Cruz timely appealed the
IJ’s decision to the BIA.

        Less than a month after the IJ issued its removal order,
Cruz filed a petition for post-conviction relief in New Jersey
Superior Court. Cruz alleged that the attorney who represented
him in his 1999 criminal proceedings provided ineffective
assistance of counsel. Specifically, Cruz claimed that his
attorney failed to advise him that a guilty plea could lead to his
deportation, though he was fully aware of Cruz’s status as a
non-citizen of the United States. Moreover, Cruz alleged that
his attorney did not suggest that he apply for New Jersey’s Pre-
Trial Intervention program (“PTI”), though he was aware that,
as a first-time offender charged with a nonviolent offense, Cruz
would have been a good candidate for the program.

       PTI permits criminal proceedings to be postponed while

                                5
a defendant completes a rehabilitation program. At the
completion of this program, the charges against the defendant
are dropped. Admission into PTI does not require the defendant
to make an admission of guilt. See 

(outlining the details of PTI). Thus, PTI provided Cruz with a
way of resolving the criminal charges against him without the
adverse immigration consequences of a guilty plea. Cruz’s
petition for post-conviction relief requested that his guilty plea
and sentence be set aside so that he could apply for admission
into PTI.

       On April 21, 2003, the Superior Court denied Cruz’s
application for post-trial relief, finding that Cruz’s attorney had
not provided ineffective assistance of counsel. The court
believed that not pursuing PTI was a strategic decision, not a
failure on the part of Cruz’s attorney. Furthermore, because
evidence showed that the Union County prosecutor would have
blocked Cruz’s admission into PTI even if he had applied, the
court found that Cruz could not demonstrate that he was
prejudiced by his counsel’s allegedly deficient performance.
Cruz appealed this decision to the Appellate Division of the
Superior Court of New Jersey. However, on April 16, 2004,
before Cruz’s appeal was decided by the New Jersey courts, the
BIA affirmed without opinion the IJ’s removal order.

       On June 15, 2004, two months after the BIA upheld
Cruz’s removal, the Appellate Division of the Superior Court of
New Jersey affirmed the trial court’s denial of post-conviction
relief. Though the Appellate Division concluded that Cruz
received deficient representation during his criminal
proceedings, it denied his ineffective assistance claim because
Cruz could not show he was prejudiced by his counsel’s

                                6
deficiency. The court concluded that it was highly unlikely that
Cruz would have been admitted into PTI in 1999, given the
policies of the Union County prosecutor’s office when Cruz was
convicted. Thus, the outcome of Cruz’s criminal proceedings
would have been the same, even if Cruz’s attorney performed
competently.

        Though Cruz lost his appeal in the Appellate Division, he
hoped that the acknowledgment by a New Jersey appellate court
that he received substandard representation would convince the
new Union County prosecutor that he deserved to be admitted
into PTI. Cruz was correct, and the prosecutor, who was
different from the county prosecutor in office when Cruz was
convicted, agreed to support Cruz’s application for PTI. In a
July 6, 2004 letter, the Union County prosecutor’s office
informed the PTI program that it backed Cruz’s admission to
the program. This letter alluded to three different reasons for
why Cruz should have his conviction vacated and should be
admitted into PTI: (1) he never had the opportunity to apply for
PTI before, due to his attorney’s deficient representation; (2)
Cruz behaved well during his probation and in the time since;
and (3) he was scheduled to be deported.1 Cruz was


  1
   The letter states, in pertinent part:

              This is the case where the defense
              attorney . . . failed to advise Mr.
              Cruz of his right to apply for
              admission into the PTI Program.
              Subsequently, Mr. Cruz entered a
              plea of guilty and was placed on

                                 7
subsequently admitted into PTI and, on September 24, 2004, a
judge in the Superior Court of New Jersey vacated Cruz’s guilty
plea and conviction, subject to Cruz’s successful completion of
the PTI program.2

       Immediately after his conviction had been vacated, Cruz
requested a stipulation from Immigration and Customs


              probation.     According to his
              probation officer . . . Mr. Cruz was
              a model probationer . . . . Mr. Cruz
              has not been in any trouble, of any
              kind, since he completed his term
              of probation, and has been working
              full-time.

              As you may also know, due to his
              conviction, Mr. Cruz is scheduled
              to be deported in the near future.

              Based upon all of the circumstances
              involved in this situation,
              Prosecutor Romankow has
              consented to Mr. Cruz’s application
              into the Pre-Trial Intervention
              Program.

(App. 125.)
    2
     Cruz successfully completed the PTI program and, on
October 28, 2005, the Superior Court of New Jersey dismissed
the “complaint, indictment, and accusation” against him.

                               8
Enforcement (“ICE”) to reopen his proceedings before the BIA.
ICE denied this request on February 10, 2005 and, eight days
later, Cruz filed a motion to reopen his proceedings before the
BIA. Among the materials that Cruz provided the BIA in
support of his motion were (1) a copy of the New Jersey
Superior Court order vacating his conviction, (2) a copy of his
brief before the Appellate Division of the Superior Court, (3)
the July 6, 2004 letter, referred to above, from the Union
County prosecutor’s office in support of Cruz’s PTI application,
and (4) an affidavit dated October 21, 2004 in which an
assistant prosecutor in Union County stated that her decision to
approve Cruz for PTI was “based strictly on the merits of his
case.” Cruz argued that his conviction had been vacated based
on a defect in the underlying criminal proceedings, namely, his
attorney’s deficient representation. Cruz contended that, under
Pickering, this meant that he was no longer “convicted” under
the INA and therefore no longer removable. Consequently, his
proceedings should be reopened “in the interest of justice and as
a matter of due process.”

       The BIA denied Cruz’s motion on May 3, 2005. Its
order stated, in pertinent part:

              We find that the present motion
              must be denied because it is
              untimely. The motion was due on
              or before May 17, 2004, but it was
              not filed until February 18, 2005,
              so that it is more than 9 months
              late. See 8 C.F.R. § 1003.2(c)(2)
              (2004) (requiring motions to
              reopen to be filed generally within

                               9
             90 days after the date on which the
             final administrative decision was
             rendered).

             We also find that the respondent
             has not demonstrated eligibility for
             any of the regulatory exceptions to
             the time and number restrictions on
             motions to reopen. See 8 C.F.R. §
             1003.2(c)(3) (2004). Finally, we
             do not find that sua sponte
             reopening is warranted for any
             reason. See Matter of J-J-, 21 I. &
             N. Dec. 976 (BIA 1997); see also
             Matter of G-D-, 22 I. & N. Dec.
             1132 (BIA 1999).

(App. 2.) Cruz timely petitioned for review of this decision on
May 26, 2005.

                   II. Legal Framework

       Under the INA, conviction for a “crime involving moral
turpitude” constitutes grounds for an alien’s removal from the
United States. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (“[A]ny alien
convicted of . . . a crime involving moral turpitude . . . is
inadmissible” and therefore “ineligible to be admitted to the
United States.”); 

(establishing that an
individual lawfully admitted for permanent residence who has
been convicted of an offense involving moral turpitude is
deemed to be a person seeking admission to the United States
when reentering the country). Where an alien’s conviction for

                              10
such a crime is later vacated, the question that arises is whether
the alien nevertheless remains “convicted” for purposes of the
INA. See 8 U.S.C. § 1011(a)(48)(A) (defining “conviction”
under the INA).

       The BIA has established that when a court with
jurisdiction vacates an alien’s conviction based on a defect in
the underlying criminal proceedings, the alien no longer has a
“conviction” under the INA. However, if a court vacates a
conviction for reasons unrelated to the merits of the underlying
criminal proceedings, such as for rehabilitation purposes or to
avoid immigration hardships, the alien remains “convicted” for
immigration purposes. In re Pickering, 23 I. & N. Dec. at 624.
We have previously upheld this distinction, finding it to be a
reasonable interpretation of the INA. 

-
10. In Pinho, we also established a “categorical test” for the
BIA to apply in determining whether an alien is convicted for
immigration purposes under Pickering:

              To determine the basis for a vacatur
              order, the agency must look first to
              the order itself. If the order
              explains the court’s reasons for
              vacating the conviction, the
              agency’s inquiry must end there. If
              the order does not give a clear
              statement of reasons, the agency
              may look to the record before the
              court when the order was issued.
              No other evidence of reasons may
              be considered.


                               11


consequence of Pickering is that a conviction
that is vacated for immigration purposes may not provide the
basis for an alien’s removal. A motion to reopen is the proper
means for an alien who has been ordered removed due to a
conviction to challenge his removal after that conviction is
vacated. See Estrada-Rosales v. INS, 

, 821 (9th
Cir. 1981) (granting motion to reopen where conviction that
supported petitioner’s deportation had been vacated based on
defects in underlying proceedings); Cruz-Sanchez v. INS, 

, 1088-89 (7th Cir. 1971) (noting the BIA’s position
that the proper way to attack deportation based upon a
subsequently vacated conviction is in a motion to reopen).
Without this procedural tool, an alien could be removed even
after he is no longer convicted for immigration purposes, a
result that would conflict with the central holding of Pickering.
Although the government did not bring this to our attention, our
research has revealed that the Board has routinely been willing
to overlook the untimeliness of an alien’s motion to reopen
when a conviction supporting a removal order is vacated and
urged to be invalid under Pickering.3


      3
     In ten unpublished opinions where the BIA found that
convictions supporting removal orders either were or may have
been invalid under Pickering, the Board has overlooked the
untimeliness of an alien’s motion and reopened proceedings
based on its sua sponte authority under 8 C.F.R. § 1003.2(a).
See In re Urqilla-Morales, A43 993 791, 

(BIA Dec. 28, 2005) (unpublished); In re Hernandez-Ruiz, A92
319 174, 

(BIA Dec. 28, 2005) (unpublished);

                               12
                        III. Discussion

       Congress has explicitly granted federal courts the power

In re Ararao, A23 127 203, 

(BIA Dec. 2,
2005) (unpublished); In re Hamidi, A23 625 848, 

(BIA Aug. 4, 2005) (unpublished); In re Payne, A41
189 506, 

(BIA May 6, 2005) (unpublished);
In re Barreiro, A13 309 994, 

(BIA April 21,
2005) (unpublished); In re Garcia-Avila, A72 977 985, 

(BIA Jan. 28, 2005) (unpublished); In re Balogun,
A90 564 187, 

(BIA Nov. 15, 2004)
(unpublished); In re Ojogwu, A90 346 158, 

(BIA May 25, 2004) (unpublished); In re Meola, A30 951 771,

(BIA Feb. 12, 2004) (unpublished); see also
In re Onochie, A26 900 480, 

(BIA July 16,
2004) (unpublished) (suggesting that BIA would have granted
respondent’s motion to reopen if not for precedent of the Court
of Appeals for the Fifth Circuit contrary to Pickering). The
parties have not identified, and we have not found, a single case
in which the Board has rejected a motion to reopen as untimely
after concluding that an alien is no longer convicted for
immigration purposes. So long as an alien has not “slept on his
rights” in bringing a vacatur under Pickering to the BIA’s
attention, the Board has granted untimely motions to reopen
proceedings. See In re Williams, A38 200 976, 

(BIA Sept. 17, 2004) (unpublished) (denying motion
to reopen where conviction had been vacated two months prior
to the time that the BIA had affirmed the removal order); In re
Ameh, A74 887 925, 

(BIA Jan. 2, 2004)
(unpublished) (refusing to reopen where alien could have filed
a timely motion to reopen but did not).

                               13
to review “any final order of removal” under 8 U.S.C. §
1252(a)(1). Implicit in this jurisdictional grant is the authority
to review the denial of a motion to reopen any such final order.
Patel v. United States Attorney General, 

, 1261
(11th Cir. 2003); Chow v. INS, 

, 664 (7th Cir.
1997). There are, however, certain situations in which
jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2) limit
or eliminate our jurisdiction to review denials of motions to
reopen. Durant v. INS, 

, 115 (2d Cir. 2005);
Assaad v. Ashcroft, 

, 474 (5th Cir. 2004); Dave v.
Ashcroft, 

, 652 (7th Cir. 2004); 

.

       For example, if an alien is removable for having
committed one of the offenses enumerated in 8 U.S.C. §
1252(a)(2)(C), we lack jurisdiction to review a denial of a
motion to reopen, except to the extent that it raises
constitutional claims or questions of law. 8 U.S.C. §§
1252(a)(2)(C)-(D); McAllister v. Attorney General, 

, 183, (3d Cir. 2006).4 Where § 1252(a)(2)(C) applies,


  4
   Section 1252(a)(2)(C) provides in full:

              Notwithstanding any other
              provision of law (statutory or
              nonstatutory), including section
              2241 of Title 28, or any other
              habeas corpus provision, and
              sections 1361 and 1651 of such
              title, and except as provided in
              subparagraph (D), no court shall

                               14
factual or discretionary determinations fall outside the
jurisdiction of the courts of appeals entertaining petitions for


              have jurisdiction to review any
              final order of removal against an
              alien who is removable by reason
              of having committed a criminal
              offense covered in section
              1182(a)(2) or 1227(a)(2)(A)(iii),
              (B), (C), or (D) of this title, or any
              offense covered by section
              1227(a)(2)(A)(ii) of this title for
              which both predicate offenses are,
              without regard to their date of
              commission, otherwise covered by
              section 1227(a)(2)(A)(i) of this
              title.

      The REAL ID Act, enacted on May 11, 2005, amended
the INA by adding 8 U.S.C. § 1252(a)(2)(D), which states:

              Nothing in subparagraph (B) or
              (C), or in any other provision of
              this chapter (other than this section)
              which limits or eliminates judicial
              review, shall be construed as
              precluding review of constitutional
              claims or questions of law raised
              upon a petition for review filed
              with an appropriate court of appeals
              in accordance with this section.


                               15
review. Sukuwanputra v. Gonzales, 

, 634 (3d Cir.
2006). Two predicate facts are required for § 1252(a)(2)(C) to
apply. First, the petitioner must be an alien. Second, the
petitioner must be removable by reason of having been
convicted of one of the offenses enumerated in § 1252(a)(2)(C).
Papageorgiou v. Gonzales, 

, 357 (3d Cir. 2005).

        The government contends that both factual predicates for
the application of § 1252(a)(2)(C) are present in this case
because Cruz is an alien and he was ordered removed for
committing a crime of moral turpitude. Since the BIA’s
decision to deny a motion to reopen is a discretionary
determination that we review for abuse, Borges v. Gonzales,

, 404 (3d Cir. 2005), the government argues that §
1252(a)(2)(C) divests us of jurisdiction to review the BIA’s
decision. To the extent that we have jurisdiction under §
1252(a)(2)(D) to review for constitutional or legal error, the
government claims that Cruz has raised no colorable legal issues
in his petition for us to consider.

        Cruz concedes that, because he is an alien, the first
predicate fact required to apply § 1252(a)(2)(C) is present in
this case. He contends only that the second factual predicate for
the application of § 1252(a)(2)(C) – i.e., that he is removable by
reason of having been convicted of an enumerated offense – is
unsatisfied. Cruz argues that he is no longer removable for
having committed an offense enumerated in § 1252(a)(2)(C)
because the New Jersey Superior Court vacated his conviction
based on a defect in the underlying criminal proceedings.

       In order for us to decide whether § 1252(a)(2)(C) limits
the scope of our jurisdiction here, we must determine whether

                               16
Cruz remains removable by virtue of his vacated conviction.
We would analyze this issue under the standards set forth in
Pickering and Pinho. If we conclude that Cruz is still convicted
for immigration purposes, and therefore removable under the
INA, we would review only the colorable legal or constitutional
issues that Cruz raises. 8 U.S.C. § 1252(a)(2)(D). If, however,
we find that Cruz is no longer “convicted” under the INA, §
1252(a)(2)(C) would not restrict our jurisdiction at all.

       Unfortunately, the BIA’s opinion frustrates our ability to
reach any conclusion on this issue. The BIA’s decision gives no
indication that the Board considered whether Cruz remained
convicted for immigration purposes after the New Jersey
Superior Court vacated his guilty plea and conviction. The BIA
did not analyze whether Cruz’s conviction was vacated due to
procedural or substantive defects in the underlying criminal
proceedings; nor did it address whether the Superior Court
vacated his conviction for rehabilitative purposes or to avoid the
immigration consequences. The BIA did not cite Pickering or
even mention the essential fact that Cruz’s conviction has
actually been vacated by the New Jersey courts. In short, the
BIA’s cursory analysis ignored the central argument in Cruz’s
motion to reopen that he was no longer removable for
committing a crime of moral turpitude.

      We must give the BIA the opportunity to clarify its
opinion and address whether Cruz remains removable due to his
vacated conviction. Principles of administrative law require that
the BIA, not this Court, consider this issue in the first instance.
See INS v. Orlando Ventura, 

, 16-17 (2002)
(remanding to give “the BIA the opportunity to address the
matter in the first instance in light of its own expertise.”).

                                17
Where a “matter requires determining the facts and deciding
whether the facts as found fall within a statutory term,” the BIA,
not a court of appeals, should make the initial determination.
Gonzales v. Thomas, 

, 1615 (2006). The BIA
has not done so here.

        Accordingly, the BIA must address whether Cruz
remains convicted for immigration purposes, and is therefore
removable under the INA, so that we may review its reasoning
and benefit from the BIA’s interpretation of its own precedent.
“The agency can bring its expertise to bear; it can evaluate the
evidence; it can make an initial determination; and in doing so,
it can, through informed discussion and analysis, help a court
later determine whether its decision exceeds the leeways that the
law provides.” 

; see also Partyka v.
Attorney General, 

, 417 (3d Cir. 2005) (Alito, J.,
concurring) (arguing that case should be remanded to BIA to
permit Board to apply its own ambiguous decisions). In our
view, the facts of this case blur the clear distinction Pickering
contemplates between convictions vacated due to defects in the
underlying proceedings and those vacated for the purpose of
rehabilitation or avoidance of adverse immigration
consequences. Cruz’s vacated conviction could reasonably be
classified on either side of the line Pickering draws, and the BIA
should make this determination before we do.

       One might contend that, by denying Cruz’s motion to
reopen, the Board implicitly rejected Cruz’s claim that he was
no longer convicted for immigration purposes. However, such
an implicit finding is not a substitute for the kind of analysis
required for us to provide meaningful review of the BIA’s
decision. See Smriko v. Ashcroft, 

, 297 n.12 (3d

                               18
Cir. 2004) (remanding to BIA despite the contention that BIA
implicitly rejected petitioner’s argument). Even if we were to
assume that the BIA rejected the argument that Cruz’s
conviction had been vacated for immigration purposes, we
could not affirm that determination without assuring ourselves
that the Board had reached this conclusion in accordance with
the categorical test we established in Pinho. The BIA’s opinion
gives no indication of whether the Board first examined the
vacatur order for an explanation of why the Superior Court
vacated Cruz’s conviction and limited any further evidentiary
review to the record that was before the Superior Court. 

. Without “some insight into [the BIA’s]
reasoning,” we will not independently determine whether Cruz
remains convicted for immigration purposes. Awolesi v.
Ashcroft, 

, 232 (3d Cir. 2003).

       Because we cannot determine based on the BIA’s
decision whether Cruz remains convicted for immigration
purposes, and is therefore removable under the INA, we cannot
resolve the question of whether § 1252(a)(2)(C) applies to this
case.5 Where a BIA opinion leaves the scope of our jurisdiction


   5
     Cruz argues that, regardless of whether § 1252(a)(2)(C)
applies, we have jurisdiction under § 1252(a)(2)(D) to consider
the legal question of whether there was a proper basis to reopen
his immigration proceedings. See 

(noting that BIA errs as a matter of law when it violates the
requirements of Pinho and Pickering). Assuming that we have
jurisdiction under § 1252(a)(2)(D) to consider whether Cruz
remains convicted for immigration purposes, the BIA would still
need to address this issue in the first instance. See Thomas, 126

                               19
in question, we will remand the case to the BIA for further
consideration. See Zhu v. Ashcroft, 

, 528 (5th Cir.
2004) (remanding to BIA where court could not determine its
own jurisdiction based on the Board’s opinion); Haoud v.
Ashcroft, 

, 205 (1st Cir. 2003) (vacating BIA
opinion where it “effectively prevents a reviewing court from
knowing whether [the Board’s decision] was reviewable or non-
reviewable”); Kayembe v. Ashcroft, 

, 238 (3d Cir.
2003) (“When deficiencies in the BIA’s decision make it
impossible for us to meaningfully review its decision, we must
vacate that decision and remand so that the BIA can further
explain its reasoning.”).

       The government argues that, regardless of our
jurisdiction under § 1252(a)(2)(C), the BIA’s order is
unreviewable because it implicates the Board’s unfettered
discretion to reopen proceedings sua sponte under 8 C.F.R. §
1003.2(a). This regulation permits the Board “at any time [to]
reopen or reconsider on its own motion any case in which it has
rendered a decision.” To make out a prima facie case for sua
sponte reopening, an alien must show the presence of an
“exceptional situation.” See In re G-D-, 22 I. & N. Dec. 1132,
1133-34 (BIA 1999); In re J-J-, 21 I. & N. Dec. 976, 984 (BIA
1997). However, “[t]he Board has discretion to deny a motion
to reopen even if the party moving has made out a prima facie
case for relief.” 8 C.F.R. § 1003.2(a). Because there is no
standard governing the agency’s exercise of discretion under 8
C.F.R. § 1003.2(a), we would lack jurisdiction to review BIA


S. Ct. at 1615. Because the Board did not do so, we would
remand this case even under our § 1252(a)(2)(D) jurisdiction.

                              20
decisions not to reopen proceedings sua sponte. Calle-Vujiles
v. Ashcroft, 

, 475 (3d Cir. 2003).

       Cruz responds that an exception applies here to the
general principle that decisions wholly within an agency’s
discretion are unreviewable. If the BIA has restricted the
exercise of its discretion by establishing a “general policy” of
reopening sua sponte when an alien contends his conviction is
vacated under Pickering, we would have jurisdiction to review
the BIA’s order. See 

true that if an agency announces
and follows – by rule or by settled course of adjudication – a
general policy by which its exercise of discretion will be
governed, that exercise may be reviewed for abuse.” (internal
quotation omitted)). Cruz argues that the Board has consistently
held that a conviction vacated for immigration purposes
constitutes an “exceptional situation” under which proceedings
must be reopened sua sponte, see supra note 3, and that we may
thus review the Board’s departure from that “settled course of
adjudication” in the instant case.

       Just as we cannot determine from the BIA’s opinion
whether § 1252(a)(2)(C) applies here, we also find it to be
inconclusive on the issue of whether the BIA’s decision not to
reopen sua sponte in this case implicated its unfettered
discretion. The BIA gave no indication that it considered
Cruz’s core argument for why his case should be reopened, but
simply found that sua sponte reopening was not “warranted for
any reason.” We cannot tell from its opinion whether the BIA
concluded that Cruz made out a prima facie case for sua sponte
relief based on his vacated conviction, but nevertheless
exercised its unreviewable discretion under 8 C.F.R. § 1003.2(a)
to decline to reopen, or whether it believed that Cruz had not

                               21
shown an “exceptional situation,” and was therefore ineligible
because he failed to establish a prima facie case for sua sponte
relief. In the latter instance, we would have jurisdiction to
review the BIA’s decision. See 

(distinguishing between unreviewable decision to grant
discretionary relief and reviewable decision that alien is legally
ineligible for discretionary relief). Thus, we are presented with
a “jurisdictional conundrum” in that we have no way of
knowing whether the BIA declined to exercise its sua sponte
authority on a reviewable or non-reviewable basis. See 

. Under such circumstances, we will remand for
further explanation from the BIA. Id.; 

.

        Though we do not decide whether, as Cruz suggests, the
BIA has established a “general policy” of reopening
proceedings where a conviction is alleged to be invalid under
Pickering, we are having difficulty squaring the BIA’s cursory
treatment of Cruz’s predicament with its practice in every other
case we have examined that presents the same issue. See supra
note 3. While the unpublished BIA decisions we have
consulted are not necessarily in the category of “selected
decisions . . . designated to serve as precedents in all
proceedings involving the same issue or issues,” 8 C.F.R. §
1003.1(g), agencies should not move away from their previous
rulings without cogent explanation. See Johnson v. Ashcroft,

, 700 (3d Cir. 2002) (“Although an agency can
change or adapt its policies, it acts arbitrarily if it departs from
its established precedents without ‘announcing a principled
reason’ for the departure.” (quoting Fertilizer Inst. v. Browner,

, 778 (3d Cir. 1998))); Henry v. INS, 

, 6
(1st Cir. 1996) (“[A]dministrative agencies must apply the same
basic rules to all similarly situated supplicants.”); Salameda v.

                                22
INS, 

, 450 (7th Cir. 1995) (“Agencies do not have
the same freedom as courts to change direction without
acknowledging and justifying the change.”). Where there is a
consistent pattern of administrative decisions on a given issue,
we would expect the BIA to conform to that pattern or explain
its departure from it. Cf. 

(remanding
case to BIA for “fail[ure] to render a decision consistent with or
fully explained as reasonably departing from its own
precedent”). Should the Board determine on remand that Cruz
is no longer “convicted” under the INA, we would expect it to
reopen his proceedings despite the untimeliness of his motion,
as it has routinely done in other cases where a conviction was
vacated under Pickering, or at least explain logically its
unwillingness to do so.

       For the reasons set forth, we will grant the petition for
review and remand the matter for further proceedings consistent
with this opinion.




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