BERNICE BOUIE DONALD, Circuit Judge.
Muhammad Salman Rais, a native and citizen of Pakistan, is under a final order of removal from the United States. He has twice moved the Board of Immigration Appeals (BIA) to reopen removal proceedings against him without success, requesting that the proceedings be suspended while the United States Citizenship and Immigration Services (USCIS) adjudicates his application for adjustment of status. The BIA denied the first motion on the merits and refused to exercise its sua sponte authority to grant the second, which was untimely and number-barred. Rais now petitions for judicial review of the second denial. For the reasons that follow, however, we
The legal context of this case — caught, as it is, between two branches of the federal immigration system — potentially clouds apprehension of the questions that it raises. Accordingly, a brief sketch of that context is in order:
Marrakchi v. Napolitano, 494 Fed.Appx. 877, 887 (10th Cir.2012) (Lucero, J., dissenting) (citations omitted) (discussing an issue that "[t]he majority d[id] not reach"). Non-citizens are subject to a ten-year bar on re-entry into the United States if they are found to have been unlawfully present here for more than one year. 8 U.S.C. § 1182(a)(9)(B)(i)(II).
Against this backdrop, this case presents two discrete claims that a convoluted factual and procedural history similarly threatens to obscure. At an earlier stage of the case, this court briefly recounted much of that history as follows:
Rais v. Holder, 518 Fed.Appx. 476, 476 (6th Cir.2013) (per curiam).
Rais then filed a fourth application for adjustment of status (discounting the request for status adjustment that he directed to the IJ) with USCIS on March 5, 2013, to which he appended nearly one hundred pages of information to evidence his fitness to remain in the United States and to demonstrate the hardship that removal from the country would impose on him and his family. According to that information, Rais and his second wife are both practicing physicians in rural western Michigan; they provide medical care to an underserved population and free medical care to indigent patients; their two children, Rais's mother and three sisters, and the parents and five siblings of Rais's wife all lawfully reside in the United States; and Rais no longer has any family abroad.
Additionally, Rais noted that he has cooperated with the United States as a plaintiff in a qui tam action; observed that conditions in Pakistan would be too dangerous for his children, and especially his daughter, to return there with him; and explained that he and his wife are the primary caretakers of their elderly parents. He also asserted that his ex-wife had submitted a letter in support of his efforts to challenge his domestic-violence conviction. The conviction was set aside for lack of jurisdiction in March 2013.
Rais next filed a motion with the BIA to reopen and administratively close — read: "suspend" — the removal proceedings against him while he awaited USCIS's ruling. He had filed a previous motion to reopen in March of 2012, but was unsuccessful.
(A.R. 23 (citing In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997)); accord A.R. 25 (also citing In re J-J-, 21 I. & N. Dec. at 984) ("There are exceptional circumstances in Dr. Rais's case that warrant the sua sponte reopening of his removal proceedings.")).
On May 15, 2013, the BIA denied the second motion as untimely and number-barred. It observed that the motion had been filed more than a year after the final order of removal had been entered and explained that administrative closure is "not appropriate" after the entry of a final order.
Rais petitioned this court for judicial review of the BIA's order on May 24, 2013, raising two claims for relief: (1) whether the denial of his second motion to reopen frustrated his statutory right to apply for adjustment of status before USCIS; and (2) whether the denial ran counter to the policy goals of avoiding needless separation of families. He also requested that the court stay his removal from the country and hold his petition in abeyance until USCIS adjudicated his status-adjustment application.
On October 30, 2013, we granted the first request but denied the second, concluding that USCIS's disposition of Rais's application "w[ould] have no impact on the issues presented [to this court]." We also
As of May 11, 2005, the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, governs judicial review of final orders of removal. The act empowers this court to review final orders of removal as long as (1) a petition for judicial review is filed within thirty days of such an order, and (2) the IJ who completed the removal proceedings did so within this circuit. 8 U.S.C. § 1252(a), (b)(1)-(2); see id. § 1101(a)(47)(B) (explaining that an order of removal becomes final after the BIA affirms an IJ's order of removal or after the period of time during which appeal to the BIA is available expires, whichever is earlier). This authority extends to the denial of motions to reopen removal proceedings.
Here, the facts are not in dispute. The BIA denied Rais's second motion to reopen the removal proceedings against him on May 15, 2013, and Rais filed a petition for judicial review of that denial nine days later, on May 24, 2013. The IJ who completed removal proceedings against Rais did so in Detroit, Michigan. Accordingly, the court's exercise of jurisdiction over Rais's petition ordinarily would be proper.
There exists, however, a jurisdictional question related to the BIA's denial of the underlying motion to reopen. Rais neither disputes that the motion was both untimely and number-barred nor asserts that he qualifies for any exception to the filing requirements. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (filing requirements); 8 C.F.R. § 1003.2(c)(2) (same); id. § 1003.2(c)(3)(i)-(iv) (exceptions to filing requirements).
As the Supreme Court has explained, there is no statutory mechanism by which removal proceedings may be reopened. INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); cf. Kucana v. Holder, 558 U.S. 233, 243-44, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (citing 8 C.F.R. § 1003.2(a)) (explaining that the BIA's "authority to act on a motion to reopen" is not provided by statute "but only in the Attorney General's regulation"). 8 U.S.C. § 1229a(c)(7) authorizes the filing of motions to reopen but says nothing as to the granting of such motions.
With regard to the BIA's sua sponte authority, however, we apply a different rule. Under Barry v. Mukasey and Harchenko v. INS, the exercise of this specific authority "`is committed to the unfettered discretion of the BIA' and therefore is not subject to judicial review." Barry, 524 F.3d at 723 (quoting Harchenko, 379 F.3d at 410-11). Our most recent decisions on the matter — for example, Lisboa v. Holder, 570 Fed.Appx. 468 (2014), Zhang v. Holder, 702 F.3d 878, 882 (6th Cir.2012), and Gor v. Holder, 607 F.3d 180, 182 (6th Cir.2010) — adhere to this view. Accordingly, we lack jurisdiction to review the BIA's denial of Rais's second motion to reopen.
Rais contends that the Supreme Court's intervening decision in Kucana v. Holder undercuts Barry and Harchenko and, recognizing that they are otherwise binding on this panel, suggests that this court reconsider those precedents en banc. Two points are relevant here. First, the
Second, to the extent that Rais identifies a conflict between this court's precedent and Kucana, en banc review is not necessary to resolve it: A prior panel decision is binding on later panels only to the extent that "an inconsistent decision of the ... Supreme Court [does not] require[] modification of the decision." Ward v. Holder, 733 F.3d 601, 608 (6th Cir.2013) (quoting Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985)). Accordingly, this panel would not be constrained by Barry and Harchenko if, as Rais argues, Kucana mandates a contrary result. This court already rejected en banc review in Gor, 607 F.3d 180, reh'g en banc denied, No. 08-3859, 2010 U.S.App. LEXIS 21449 (Oct. 5, 2010), and in an unpublished case that involved similar claims, see Arestov v. Holder, 489 Fed.Appx. 911, 921 & n. 6 (6th Cir.2012) ("With respect to the BIA's refusal to exercise its sua sponte authority to grant [the petitioner's] motion to reopen, [the petitioner] contends that the Supreme Court's decision in Kucana ... controls our result.... [O]ur court has declined to grant an initial hearing en banc in this case.").
Further, this court already has determined that Barry and Harchenko were not overruled by Kucana. There, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review discretionary actions by the Attorney General, "does not proscribe judicial review of denials of motions to reopen." 558 U.S. at 249, 130 S.Ct. 827. The reason, according to Kucana, is that the BIA's discretion regarding such motions is regulatory, rather than statutory, in origin. Id. at 248, 130 S.Ct. 827 ("If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute ... [it] could easily have said so.").
This holding is consistent with the long-standing practice of federal courts generally to review administrative denials of motions to reopen for abuse of discretion. Id. at 242, 130 S.Ct. 827. And, as this court since has recognized, Kucana therefore "casts considerable doubt on ... circuit precedent that dictates that [the exercise of the BIA's sua sponte authority to act on such motions is beyond judicial review]." Gor, 607 F.3d at 182; accord id. at 197 (Cole, J., concurring).
Generously construed, Rais's brief contends that judicial review nevertheless remains available under 8 U.S.C. § 1252(a)(2)(D), which provides that federal courts may review "constitutional claims" and "questions of law" despite "any other provision of [that] chapter."
In any event, neither of the two claims that Rais raises before this court is a constitutional claim, and only the first, which alleges the frustration of a statutory right, is even potentially a question of law.
Recall that the Supreme Court held in Kucana that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review discretionary actions by the Attorney General, "does not proscribe judicial review of denials of motions to reopen," 558 U.S. at 249, 130 S.Ct. 827, but offered "no opinion on whether federal courts may review the [BIA]'s decision not to reopen removal proceedings sua sponte," id. at 251 n. 18, 130 S.Ct. 827. Accordingly, under Kucana and in the absence of Barry and Harchenko, § 1252(a)(2)(D) would enable constitutional claims and questions of law to survive any bar to judicial review of the BIA's sua sponte denials that "the confluence of ... § 1252(a)(2)(B)(ii) and 8 C.F.R. § 1003.2[a]" might otherwise impose. Gor, 607 F.3d at 187.
But Barry and Harchenko expressly hold that the BIA's exercise of its sua sponte authority "`is committed to [its] unfettered discretion ... and therefore is not subject to judicial review.'" Barry, 524 F.3d at 723 (quoting Harchenko, 379 F.3d at 410-11). And, as Chief Judge Batchelder has noted, neither case relied on § 1252(a)(2)(B)(ii). Gor, 607 F.3d at 195 (Batchelder, C.J., concurring). Instead, "[t]he Harchenko and Barry panels concluded, as has nearly every other Circuit to consider the question, that the BIA's exercise of its sua sponte authority was not reviewable because there was simply `no law to apply.'"
Put differently, Congress need not designate the BIA's sua sponte authority as discretionary by statute in order for the Attorney General's regulatory determination that the power is discretionary, see 8
Rais failed to satisfy the requirements for filing a second motion to reopen the removal proceedings against him and claims shelter under no exception to those requirements. Consequently, the BIA's sua sponte authority to grant his motion was the only means by which he could have obtained relief. Binding circuit precedent, unimpaired by recent Supreme Court case law, establishes that this court does not have jurisdiction to review the BIA's decision to refrain from exercising that authority. We therefore
8 C.F.R. § 1001.1(q). Although aliens who enter the United States through a grant of advance parole need not be designated "arriving aliens" solely by reason of the grant, id., Rais now concedes that USCIS "has exclusive jurisdiction over his application to adjust status to that of a lawful permanent resident" "[b]ecause [his] last entry into the U.S. was through a grant of advance parole[.]"
After this court decided Almuhtaseb, the Second Circuit revised Chen to expand its definition of "question of law." Chen v. U.S. Dep't of Justice (Chen II), 471 F.3d 315, 326-27, 329 (2d Cir.2006) (citing INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)) (revised Dec. 7, 2006). Since Chen II, a circuit split has emerged over whether that term includes only issues of statutory construction and interpretation or also includes mixed questions of law and fact. See, e.g., Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) (including mixed questions); Khan v. Filip, 554 F.3d 681, 688-89 (7th Cir.2009) (including only "pure" questions of law). This court, however, expressly has declined to expand its definition of "question of law" to include mixed questions of law and fact. Khozhaynova v. Holder, 641 F.3d 187, 192 (6th Cir.2011) ("We continue to maintain a more narrow interpretation of our jurisdiction ... and limit review to constitutional or statutory interpretation claims.").