No.

Sn upreme ¢gourt of tl e nite tate

ANA ROSA OCHOA,

Petitioner,V.

ERIC H. HOLDER, JR.,UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Benjamin R. CasperIMMIGRANT LAW CENTER

OF MINNESOTA

450 N. Syndicate StreetSt. Paul, MN 55104(651) 271-6661

Dean C. EylerGRAY PLANT MOOTY

500 IDS Center80 South Eighth StreetMinneapolis, MN 55402(612) 632-3016

Richard P. BressLori A1vino McGill*

*Coztnsel of RecordKerry J. DingleLATHAM & WATKINS LLP

555 llth Street, NWSuite 1000Washington, DC 20004(202) 637-2200lori.alvino.mcgill@lw.com

Counsel for Petitioner~Admitted to practice in Massachusetts; all work supervised by anattorney admitted to practice in the District of Columbia.

Page

i

QUESTIONS PRESENTED

1. Whether the Eighth Circuit erred by holding--consistent with two other circuits and in conflict withat least three other circuits--that federal courts arecategorically incompetent to review a Board ofImmigration Appeals decision denying a motion toreopen removal proceedings s~a sponfe, even wherethat decision applies a legal standard, on the groundthat such decisions are "committed to agency discretionby law."

2. Whether the Eighth Circuit erred bydisregarding the BIA’s stated grounds for its decision,in conflict with SEC v. Chenery Corp., 318 U.S. 80(1943), and the decisions of other circuits.

ii

TABLE OF CONTENTSPage

QUESTIONS PRESENTED ............................................i

TABLE OF AUTHORITIES ...........................................v

OPINIONS BELOW ..........................................................1

JURISDICTION .................................................................1

RELEVANT STATUTES AND REGULATIONS .....1

STATEMENT OF THE CASE ........................................

Statutory and Regulatory Framework ............................3

Facts and Procedural History ...........................................3

REASONS FOR GRANTING THE WRIT .................11

I. THE EIGHTH CIRCUIT’S DECISIONDEEPENS AN ENTRENCHED CIRCUITCONFLICT ON WHETHER BIADECISIONS DENYING MOTIONS TOREOPEN "SUA SPONTE" ARECATEGORICALLY UNREVIEWABLE .........15

A. The Decision Below Deepens AnEntrenched Circuit ConflictConcerning Whether BIA’s Denial OfA Motion To Reopen S~ta Spot,re IsCategorically Exempt From JudicialReview ................................................................16

B. The Eighth Circuit’s Holding CannotBe Reconciled With This Court’sPrecedents .........................................................19

111

TABLE OF CONTENTS--ContinuedPage

1. BIA’s Sua Spo~te ReopeningDecisions Are Reviewable UnderK~tcana and Heckler. ........................................21

2. Heckler does not preclude review tothe extent that an agency has resolveda question of law ...............................................26

C. The Petition Presents A RecurringIssue Of National Importance ........................28

II. THE EIGHTH CIRCUIT’S DECISIONCONTRAVENES CHENERY .............................30

CONCLUSION .................................................................35

APPENDIX

Opinion of the United States Court of Appealsfor the Eighth Circuit, Ocl~oa v. Holder, 604F. 3d 546 (Sth Cir. 2010) ............................................la

Judgment of the Eighth Circuit DismissingPetition, Ochoa v. Holder (8th Cir. May 5,2010) ...........................................................................15a

Order and Opinion of the Eighth CircuitDenying Panel Rehearing, Ochoa v. Holder(8th Cir. Aug. 27, 2010) ............................................16a

Order of the Eighth Circuit Denying RehearingEn Banc, Ochoa v. Holder (Sth Cir. Sept. 17,2010) ...........................................................................18a

iv

TABLE OF CONTENTS--ContinuedPage

Corrected Order of the Eighth Circuit DenyingRehearing En Banc, Oc]~oa v. Holder (SthCir. Sept. 20, 2010) ...................................................19a

8 C.F.R. §1003.2(a), (c) ....................................................20a

Motion to Reopen and Stay Deportation (B.I.A.July 23, 2007) .............................................................22a

Order of the Board of Immigration AppealsDenying Respondent’s Motion to Reopen(B.I.A. Nov. 2, 2007) .................................................28a

V

TABLE OF AUTHORITIESPage(s)

CASESAbebe v. Go~tzales,

432 F.3d 1037 (9th Cir. 2005) ....................................32

BNSF Railway Co. v. STB,604 F.3d 602 (D.C. Cir. 2010) ....................................32

Burlington Tr~.t.ck Li~.es, I’~c. v. U~ited States,371 U.S. 156 (1962) .....................................................31

Ca~tu-Delgadillo v. Holder,584 F.3d 682 (5th Cir. 2009) ......................................29

Cevilla v. Go~zales,446 F.3d 658 (7th Cir. 2006), cert. de~ied,552 U.S. 826 (2007) .....................................................17

Cl~en v. Ashcrqft,378 F.3d 1081 (9th Cir. 2004) ....................................30

Citizens to Preserve Overto~ Park, Inc. v.Volpe,401 U.S. 402 (1971) ...................................15, 23, 24, 27

Cr~tz v. Attor~.ey General,452 F.3d 240 (3d Cir. 2006) ..................................17, 33

Dada v. Mukasey,128 S.Ct. 2307 (2008) ............................................23, 29

Depart~e~t of Navy v. Ega~,84 U.S. 518 (1988) .......................................................26

TABLE OF AUTHORITIES--Continued

Page(s)Dia z- Co ~.,a ~’r~t b i(~ s ~’. 3i~ ka sey,

551 F.3d 1114 (gth Cir. 2009) .................................... 29

D~,¢arte-Ceri v. Holder,No. 08-6128-ag, 2010 WL 4968689 (2d Cir.Dec. 6, 2010) ................................................................17

Ester v. Pri~cipi,250 F.3d 1068 (7th Cir. 2001) ....................................32

FPC v. Texclco I~c.,417 U.S. 380 (1974) .....................................................31

Flo~’ida Power & Ligl~t Co. v. Lorio~,470 U.S. 729 (1985) ...............................................14, 33

Fro~kli~ v. Mc~ssach~setts,505 U.S. 788 (1992) ...............................................26, 27

Garza-More~o v. Go~zales,489 F.3d 239 (6th Cir. 2007) ......................................29

Gasl~i v. Holder,382 F. App’x 21 (2d Cir. 2010) ..................................19

Gl~c~se~i~)~el~r v. Go~zales,427 F.3d 1160 (Sth Cir. 2005) ....................................19

547 U.S. 183 (2006) .....................................................33

vii

TABLE OF AUTHORITIES--ContinuedPage(s)

Got v. Holder,607 F.3d 180 (6th Cir. 2010) .......................... 17, 18, 23

Hao~d v. Ashcrqfl,350 F.3d 201 (lst Cir. 2003) .................................30, 34

Heckler v. Chaney,470 U.S. 821 (1985) .............................15, 25, 26, 27, 29

Her~tandez v. Holder,606 F.3d 900 (Sth Cir. 2010) ......................................29

INS v. St. Cyr,533 U.S. 289 (2001) .....................................................21

INS v. Ventura,537 U.S. 12 (2002) ...........................................14, 33, 34

Iowa S~,preme Court Board of Professio~,alEthics and Con.duct v. Ta-T~t Ya~g,No. 02-0087, Order of Public Reprimand(Feb. 26, 2002) ...............................................................7

Jafmes-Aguirre v. U~ited States Attor~eyGenereal,369 F. App’x 101 (llth Cir. 2010) .............................19

Jordan v. DeGeorge,341 U.S. 223 (1951) .....................................................28

Kambolli v. Go~zales,449 F.3d 454 (2d Cir. 2006) ........................................30

Vlll

TABLE OF AUTHORITIES--ContinuedPage(s)

K~c~a c. Holder,129 S.Ct. 2075 (2009) .................................................. 28

K~,~ca~ct v. Holder’,130 S.Ct. 827 (2010) ..........................................2, 11, 12

508 U.S. 182 (1993) .....................................................26

L~is v. INS,196 F.3d 36 (1st Cir. 1999) .........................................17

Mah mood v. Holder,570 F.3d 466 (2d Cir. 2009) ........................................17

Matter of Coelho,20 I. & N. Dec. 464 (B.I.A. 1992) ........................13, 30

Matter qf Lozoda,19 I. & N. Dec. 637 (B.I.A. 1988) ................................6

Matter qf Mo~’ea l,23 I. & N. Dec. 56 (B.I.A. 2001) ..................................5

Mosere v. M~tkasey,552 F.3d 397 (4th Cir. 2009) ......................................17

M~oz de Real v. Holder,0595 F.od 747 (7th Cir. 2010) ......................................18

Na wa z ~.,. Holde r,314 F. App’x 736 (5th Cir. 2009) ...............................

ix

TABLE OF AUTHORITIES--ContinuedPage(s)

Neves v. Holder,613 F.3d 30 (1st Cir. 2010) ......................................... 19

Neves v. Holder,130 S.Ct. 3273 (2010) ............................................18, 19

Ngure v. Ashcroft,367 F.3d 975 (Sth Cir. 2004) ......................................30

Otter Tail Power Co. v. STB,484 F.3d 959 (Sth Cir. 2007) ......................................32

Ozeiry v. Attorney General,No. 09-3828, 2010 WL 3920522 (3d Cir. 2010) ........19

Pe~sion Benefit Guaranty Corp. v. LTV Corp.,496 U.S. 633 (1990) .....................................................28

Pinho v. Gonzalez,432 F.3d 193 (3d Cir. 2005) ........................................17

Recio-Prado v. Gonzales,456 F.3d 819 (Sth Cir. 2006) ......................................19

Rowe v. Sulliw~,967 F.2d 186 (5th Cir. 1992) ......................................32

SECv. Ct~enery Co~p.,318 U.S. 80 (1943) .......................................2, 13, 31, 33

SECv. Chenery Corp.,332 U.S. 194 (1947) .........................................31, 32, 33

X

TABLE OF AUTHORITIES--Continued

Page(s)Sidab~ta~" v. Go~zales,

503 F.3d 1116 (10th Cir. 2007) .................................. 32

Smriko v. Ashcroft,387 F.3d 279 (3d Cir. 2004) ........................................30

Tame~t v. M~kasey,521 F.3d 1000 (Sth Cir. 2008) ...........................passim

Tsegay v. Ashcroft,386 F.3d 1347 (10th Cir. 2004) ..................................30

U~tio~ Pacific Railroad Co. v. Sheeha~,439 U.S. 89 (1978) .......................................................33

Vahora v. Holder,626 F.3d 907 (Tth Cir. 2010) ......................................29

Webster v. Doe,486 U.S. 592 (1988),] ...................................................26

STATUTES

5 U.S.C. ~701(a)(1) ...............................................................15 U.S.C. ~701(a)(2) .....................................................1, 8, 11

8 U.S.C. ~1127(a)(2) .............................................................3

8 U.S.C. ~1229a(e)(7) ...........................................................3

8 U.S.C. ~1229b(b)(1)(D) .....................................................3

xi

TABLE OF AUTHORITIES--ContinuedPage(s)

8 U.S.C. §1252 ...................................................................228 U.S.C. § 1252(a)(2)(B)(ii) ................................................] 18 U.S.C. §1252(b)(6) ..........................................................24

28 U.S.C. §1254(1) ...............................................................1

8 C.F.R. § 1003.2(a) ...................................................passim8 C.F.R. §1003.2(c) ...................................................passim8 C.F.R. §1003.2(c)(1) ..........................................................78 C.F.R. §1003.2(c)(2) ..........................................................38 C.F.R. §1003.2(c)(3)(ii) ...................................................22

OTHER AUTHORITY

Ronald M. Levin, Understc~)~dS~gUnreviewability in Admi~istrative Law, 74Minn. L. Rev. 689 (1990) .....................................29, 31

S. Rep. No. 79-752 (1945) ..................................................15

Blank Page

OPINIONS BELOW

The opinion of the Eighth Circuit is reported at 604F.3d 546 and is reproduced at App.la-14a. The opinionof the Board of Immigration Appeals is reproduced atApp.28a-31a.

JURISDICTION

A divided panel denied rehearing on August 27,2010, and rehearing en bane was denied on September17, 2010. Justice Alito extended the time for filing thispetition to and including January 18, 2011. This Courthas jurisdiction pursuant to 28 U.S.C. §1254(1).

RELEVANT STATUTES AND REGULATIONSChapter 7 of the Administrative Procedure Act

("APA"), is titled "Judicial Review" and provides inrelevant part:

(a) This chapter applies, according to theprovisions thereof, except to the extent that--

(1) statutes preclude judicial review; or(2) agency action is committed to agency

discretion by law.5 U.S.C. §701(a)(1)-(2).

The text of the relevant regulatory provisions isreproduced in the Appendix at App.20a.

STATEMENT OF THE CASEThis case involves Ana 0choa’s timely motion to

reopen her removal proceedings, on the ground thatevidence critical to her application for immigrationrelief was omitted because of her former counsel’sineffective assistance. The Board denied that motionon the merits, and the Eighth Circuit refused to reviewthe Board’s decision. Finding BIA’s treatment of

2

Ochoa’s motion "unclear," the court proceeded tointerpret the motion/br itself, and somehow concludedthat Ochoa’s concededly timely motion to reopen wasactually a limited request that BIA exercise itsdiscretionary authority to reopen "s~a sponte."Indeed, the court of appeals made quite clear that itwould have recharacterized the motion as one seekings~.ta spot,re relief even if the Board had clearly treatedit as one filed as of right. The court’s assertion ofauthority to affirm an agency based on a rationale notstated by the agency--and even a rationaleaffirmatively rejected by the agency--violates bedrockprinciples of administrative law under SECv. C]~e~ery(~,o~’p., 318 U.S. 80 (1943), and its progeny.

Having construed the motion as one requestingthat the Board reopen "s~.¢~ spot,re," the courtproceeded to hold that such decisions are categoricallyimmune from judicial review under the APA becausethey are "committed to agency discretion by law," eventhough the Board’s decision in this case turned on itsapplication of familiar (and frequently reviewed) legalstandards concerning ineffective assistance of counsel.That aspect of the Eighth Circuit’s decision deepens anintractable circuir split on the reviewability of Boarddecisions denying motions to reopen s~ta spot,re, animportant and recurring question of law. It is alsoplainly wrong. If it were correct, then this Court’srecent decision in K~tca’~a ~.,. Holder, 130 S.Ct. 827(2010), was merely a rhetorical exercise. Although thisCourt in K~tca~ decided only that IIRIRA is no bar tojudicial review of BIA’s reopening decisions, the logicalconsequence of the Eighth Circuit’s decision is that theBoard’s decision in that case was nevertheless

3

unreviewable for a different reason--i.e., that it wascommitted to agency discretion under the APA.

Statutory and Regulatory Framework

Under Section 240A(b) of the Immigration andNationality Act ("INA"), an otherwise removable alienmay nevertheless avoid deportation if she qualifies forcancellation of removal. To qualify for cancellation ofremoval, an alien must demonstrate: (1) physicalpresence in the United States for a continuous periodof not less than ten years immediately preceding thedate of the application; (2) good moral character duringthat period; (3) that she has not been convicted of adisqualifying offense; and (4) that the removal wouldresult in "exceptional and extremely unusual hardshipto the alien’s spouse, parent, or child, who is a citizen ofthe United States." 8 U.S.C. §1229b(b)(1)(D).

An alien may file, as of right, one motion to reopenremoval proceedings within ninety days of a finaladministrative decision by the Board of ImmigrationAppeals ("BIA" or "Board"). See 8 U.S.C. §1229a(c)(7);see also 8 C.F.R. §1003.2(c)(2). Attorney Generalregulations provide that the BIA also "may at any timereopen or reconsider on its own motion any case inwhich it has rendered a decision." 8 C.F.R. §1003.2(a).That same regulation provides that "[t]he Board hasdiscretion to deny a motion to reopen even if the partymoving has made out a primafocie case for relief." Id.

Facts and Procedural HistoryMs. Ochoa is a native and citizen of Mexico who

entered the United States in 1991 and has since resided

4

principally in Marshalltown, Iowa. A.R.138.1 She andher husband have two United States citizen children,Viridiana and Guillermo, and another son, Cesar, whomthey brought to the United States as an infant. Id.;App.24a.

In 2004, after Ochoa had lived in the United Statesfor ahnost 14 years, the government commencedremoval proceedings against her. Ochoa admitted thegovernment’s factual allegations and concededremovability, but applied for cancellation of removaland, in the alternative, voluntary departure, underINA §§240A(b)(1) and 240B(b).

At a hearing on her applications before anImmigration Judge ("IJ"), Ochoa testified that her sonGuillermo, then seven years old, suffered from medicalproblems caused by lead poisoning when he was twoyears old. A.R.168-69. Ochoa’s then-counsel, Mr. Ta-Tu Yang ("Yang"), declared that Guillermo’s conditionwas "new to [him]" and requested additional time tosecure and submit related evidence. A.R.175. The IJdeferred ruling on Yang’s request. A.R.175-76. Whenthe IJ asked Ochoa why she had not previouslydiscussed Guillermo’s condition with her attorney, sheexplained that she did not "think it was necessary."A.R.187.

The govermnent opposed Yang’s request foradditional time to submit corroborating evidence. Thegovernment attorney remarked that "a medicalproblem" is "one of the prime pieces of evide~ce toshow hardship" for a cancellation application, and thatit "should have been fully inquired on a nmnber of

1 "A.R." refers to the Administrative Record, No. A79-587-385

filed with the BIA.

different ways when the ease was being prepared."A.R.188 (emphasis added). The IJ agn’eed, observingthat "these are things that are so material and socentral to the claim that [they] ... should have beenadvanced earlier." A.R.189. The IJ then deniedcounsel’s request for additional time to submitcorroborating evidence of Guillermo’s disability.A.R.189-90.

The IJ found that Oehoa had good moral character,continuous physical presence in the United States formore than ten years, and no criminal record, thussatisf~4ng three of the four eligibility criteria foreaneellation of removal. A.R.902. The IJ furtheracknowledged Board precedent indicating that Oehoawould have been a ’"strong applicant" for cancellationof removal if she had demonstrated that she had a"’child with very special health issues, or compellingspecial needs in school." A.R.204 (quoting M~tterofMonreal, 23 I.&N. Dec. 56, 63 (B.I.A. 2001)). The IJdetermined, however, that "[t]he record does notcompel the conclusion ... that [Ochoa] hasdemonstrated that her removalwould createexceptional and extremely unusualhardship" forGuillermo. Id. That was so, the IJ explained, becauseOchoa had "not submitted any evidence to eithercorroborate" her testimony regarding Guillermo’sneeds and disabilities "or to develop them asexceptional and extremely unusual hardship factors."A.R.205. The BIA affirmed. A.R.206.

After obtaining new counsel, and well within theninety-day deadline prescribed by 8 C.F.R. §1003.2(c),Ochoa filed a motion to reopen based on the ineffectiveassistance of her prior counsel. See App.22a-27a. Themotion referred to 8 C.F.R. §1003.2(a), which sets forth"[g]eneral" provisions governing such motions and also

provides that BIA may reopen a case "at any time" inresponse to party’s motion or "on its own motion."App.20a. 0ehoa’s motion stated that she "ha[d]satisfied the requirements set by the Board ofImmigration Appeals for filing a motion to reopenbased on an ineffective assistance of counsel claimpursuant to Matter qf Lozad~, 19 I&N Dec. 637 (BIA1988)." App.23a. The motion explained that Ochoa’sformer attorney had failed to elicit key information andcompile corroborating evidence related to her son’sdisability, and that she was prejudiced by herattorney’s deficient performance. App.26a. Hermotion also contained a grammatically confusedrequest "that the Board of Immigration Appeals (BIA)this case on their own motion to Reopen." [Sic.]App.10a.

In support of her motion, Ochoa submitted a barcomplaint she had filed against her prior counsel and anaffidavit describing his deficient handling of her case, inaccordance with 8 C.F.R. §1003.2(c)(1) and Lozada.Ochoa also tendered evidence regarding the effects ofGuillermo’s lead poisoning, including medical recordsdocumenting his diagnosis and treatment; evidence ofhis resulting learning disabilities; and evidenceregarding the disadvantages faced by special educationstudents in Mexico. See A.R.55-135.

The Board found that Oehoa’s motion to reopen herremoval proceedings was "timely." App.28a. It alsoacknowledged that Oehoa had "complied with therequirements set forth in Matter q~" Lozada" andconfessed to being "troubled by evidence indicatingthat [Guillermo] suffered from educational problemsstemming from ... lead poisoning at the age of two."App.29a-30a. But the Board nonetheless deniedOchoa’s motion on the merits, concluding summarily

that she had failed to demonstrate ineffectiveassistance of counsel. The Board noted Ochoa’sadmission "that she did not think the lead poisoningissue was necessary to her case" and evidence thatGuillermo’s "lead levels have diminished" and werenow "in the normal range." Id. The Board did notacknowledge Ochoa’s evidence that learning disabilitiesfrom lead poisoning persist notwithstanding diminishedlead levels in the body, and never addressed Ochoa’scontention that counsel had an obligation to advise andinquire about matters relevant to her application,including her children’s medical conditions.2

Having rejected her ineffective assistance claim,the Board concluded that Ochoa had failed todemonstrate that "the new evidence presented" couldnot have been presented at her earlier hearing, asrequired by 8 C.F.R. §1003.2(c)(1), which governsmotions to reopen by a party. App.29a.

Ochoa filed a petition for review in the EighthCircuit, arguing that the BIA abused its discretion indenying her motion to reopen. /3ut a divided panelrefused to review the BIA’s action--for abuse ofdiscretion or otherwise. The panel majority

2 In response to Ms. Ochoa’s complaint against Yang, the IowaSupreme Court Board of Professional Ethics and Conduct statedthat her allegations, if true, "perhaps would be ’ineffectiveassistance of counsel,"’ but because they were not sufficientlyeg~egious "to warrant a disciplinary sanction for ethicalmisconduct," the Board declined to take further action.Petitioner’s Br. at 21-22 (Sth Cir. Jan. 28, 2008); id. at Exhibit. 3.It is a matter of public record that Mr. Yang ha.s been officiallyreprimanded by the Board for neglect of a client’s immigrationmatter on at least one occasion. Iowa S~preme C(~.rt BoardPro.fessio~al Etbic.s a~d Co~dt~ct v. Ta-Ttt Ya~g, No. 02-0087,Order of Public Reprimand (Feb. 26, 2002).

acknowledged that the BIA "may have treated Ochoa’smotion" as one filed by a party as of right "under therubric of 8 C.F.R. §1003.2(c)," a treatment that wouldhave been reviewable under K~tco~zo and longstanding8th Circuit precedent. But the panel majoritynonetheless construed Ochoa’s motion for itself andconcluded that the motion was best interpreted as arequest that the BIA reopen the case "s~.a spot,re ...under §1003.2(a)." App.6a. On that basis the panelmajority held that it was precluded fl’om reviewing theBIA’s order denying the motion, under pre-K~co~acircuit precedent holding that decisions not to reopenremoval proceedings s~a spot,re are "committed toagency discretion by law" under 5 U.S.C. §701(a)(2).App.6a-7a. "[W]e see no way around Ta~e~ut [v.M~tkasey, 521 F.3d 1000 (Sth Cir. 2(108) (en banc)],given Ochoa’s express reliance on §1003.2(a) .... "App.Sa. Because it relied on what it viewed as acategorical exclusion fl’om judicial review, the panelmajority never considered the fact that the BIA’sdecision in this case turned on a familiar--androutinely reviewed--ineffectiveness-of-counsel inquiry.

Judge Colloton dissented in part. App.Sa-14a. Thetask of the federal court, he explained, is to "review theBIA’s decision, not Ochoa’s motion." App.11a.Although Ochoa’s motion cited 8 C.F.R. §1003.2(a), anddid not explicitly invoke 8 C.F.R. §1003.2(c), the BIAhad "clear[ly]" (and correctly) treated the motion asone by a party. Id. For example, the BIA hadexplicitly found the motion "timely"--which makessense only if the motion is one by a party--and hadexplicitly applied the legal standard applicable toparty-filed motions to reopen. Id. Indeed, "[t]here isnot even a hint in the BIA’s decision ... that it

9

considered whether to exercise its ’limiteddiscretionary powers’ to reopen cases on its ownmotion." ld. Accordingly, Judge Colloton concludedthat the B IA had properly reached the merits ofOchoa’s timely motion, and the Eighth Circuittherefore had a responsibility to review the BIA’sdenial of that motion under the familiar abuse-of-discretion fl’amework. App.11a-12a. Moreover, JudgeColloton observed, "[t]he Attorney Generalrecognize[d] that the agency’s decision on the motion toreopen is judicially reviewable" and the government"concede[d] that [the court] should review [it] for abuseof discretion." App.lla.

Turning to the merits, Judge Colloton determinedthat the BIA’s decision must be vacated for "fail[ure] togive a rational and reasoned explanation for itsdecision." App.12a. "The BIA’s cursory decision onOchoa’s motion cannot withstand even this deferentialreview," he concluded, because it was "not responsiveto Ochoa’s argument that [her] counsel had aprofessional obligation to i.~tq~tire about matters thatwould assist in making a case for cancellation ofremoval, and that counsel should have elicited theinformation about lead poisoning from Ochoa."App.13a. The BIA also neglected to address "whetherit believed that differences between special educationservices available in Mexico and in the United Stateswould amount to ’exceptional and extreme|y unusualhardship’ for [Guillermo] if his mother were removed toMexico." Id. Because the BIA "failed to render areasoned decision," Judge Colloton would have"remand[ed] the case for further proceedings withrespect to Ochoa’s claim of ineffective assistance ofcounsel." Id.

10

Oehoa sought panel rehearing and rehearing enbane, arguing that the panel had erred in determiningthat her timely motion to reopen was actually a requestthat BIA reopen the case on its ow~ motion, and byconstruing Oehoa’s motion independently rather thanreviewing the BIA’s resolution of that motion on itsown terms, as required by Che~tery. Pet’n for Reh’g orReh’g En Bane at 6-9 (Sth Cir. July 26, 2010). Oehoafurther argued that this Court’s recent decision inK~ca~(~ undermined the Eighth Circuit precedentholding that BIA decisions not to reopen a ease s~aspot,re are "committed to agency discretion by law"and thus shielded from judicial scrutiny. Id. at 12-15.

In response, the government conspicuouslydeclined to defend the panel’s characterization of theBIA’s decision, stating only that "to the exte~t that thepanel accurately determined that Ochoa filed a motionto reopen requesting that the Board reopen sua sponte,the panel did not err in applying" circuit precedent.Opp. to Pet. for Reh’g at 2, 4 (Sth Cir. Aug. 19, 2010)("Reh’g Opp.") (emphasis added). The government didnot address Ochoa’s argument that the panel’s decisioncontravened Cl~e~ery. The panel denied rehearing.App.17a.

Judge Colloton dissented from the denial of panelrehearing. He took the government to task for "utterlyfail[ing] to address" the "lead argument in Ochoa’spetition for rehearing"--"that the panel erred bymischaracterizing the BIA’s action on Ochoa’s motionto reopen as a refusal to act s~ta spot,re, rather than asa denial of a timely motion to reopen filed by a party."Id. "Because the government acknowledged in its briefon appeal that the BIA’s decision is reviewable forabuse of discretion, and then declined in its response tothe petition for rehearing to defend the key premise of

11

the panel’s decision," he would have granted panelrehearing. Id. The court of appeals denied rehearingen bane. App.18a.

REASONS FOR GRANTING THE WRIT1. The Eighth Circuit held that BIA’s decision

denying Ochoa’s motion to reopen was "committed toagency discretion by law" under §701(a)(2). It heldthat review was barred categorically because themotion was one to reopen s~ta spo)~te, even though theBIA’s decision in this case turned on its application oflegal standards, and not the sort of weighing of policyand other factors that is characteristic of a purelydiscretionary decision. The Eighth Circuit therebyaligned itself with the Fourth and Sixth Circuits inconflict with decisions of at least three other courts ofappeals.

The Eighth Circuit’s holding rests principally on thefact that the relevant regulation, "8 C.F.R. §1003.2(a),provides no guidance as to the BIA’s appropriatecourse of action ... and specifies no standards for acourt to use to cabin the BIA’s discretion." Thatholding cannot be reconciled with this Court’sprecedents. In K~.cana, this Court held that thejurisdiction-stripping provision of the IllegalImmign’ation Reform and Immigrant ResponsibilityAct ("IIRIRA"), 8 U.S.C. §1252(a)(2)(B)(ii), does notpreclude review of a BIA decision denying a party’smotion to reopen removal proceedings. The Courtrejected the argument that such decisions are made"discretionary" under IIRIRA via the AttorneyGeneral’s regulations. In so holding, this Courtreaffirmed the strong presumption in favor of judicialreview and emphatically rejected the notion that "theExecutive [has] a free hand to shelter its own decisions

12

fl’om abuse-of-discretion appellate court review simplyby issuing a regulation declaring those decisions’discretionary." 130 S.Ct. at 840. Section 1003.2(a), theregulation on which the Eighth Circuit relied in thisease is the very same regulation that was the focus ofthis Court’s analysis in K~cc~c~. If the Eighth Circuitwere correct therefore, this Com’t’s decision in K~ca~awas an empty exercise, for the BIA’s denial of themotion at issue in K~ca~a itself would be "committedto agency discretion by law" and immune from judicialscrutiny. Nothing in this Court’s decision suggeststhat result. To the contrary, this Court noted the longhistory of federal appellate-court review of suchdecisions and refused to ascribe to Congq~ess an intentto strip the courts of that historically-exercisedjurisdiction.

Nevertheless, because K~ca)~a specifically reservedjudgment as to whether §701(a)(2) prevents review ofBIA decisions den3dng a request that it reopen s~aspo)~te, see K~,c(~c~, 130 S.Ct. 839 n.18, the lower courtshave resisted even the most forceful invitations torevisit pre-K~ca)~a circuit precedent applying§701(a)(2) to bar judicial review of agency decisionsdeemed discretionary by regulation--even thoughtheir reasoning cannot be reconciled with K~cana orthe Heckler line of cases construing §701(a)(2)’s narrowscope.

The question whether BIA’s "szta sponte" decisionsare categorically unreviewable is recurring andimportant, affecting the proper balance between theExecutive and the Judiciary. The disagreement amongthe courts of appeals on this issue also reflects abroader, longstanding confusion among the courts ofappeals concerning the scope of §701(a)(2). This

13

Court’s intervention is necessary to resolve the circuitconflict and provide needed guidance to the lowercourts on the limitations of §701(a)(2) more generally.And this case provides an appropriate vehicle for thatreview. Had this case arisen in the First, Second, orThird (and likely the Seventh) Circuits, Ochoa’spetition for review would have been entertained on themerits. This Court should grant the Petition to resolvethe circuit split and ensure uniformity with itsdecisions.

2. The decision below also conflicts squarely withthis Court’s decision in SECv. Che’~ery Corp., 318 U.S.80 (1943), and the decisions of other courts of appealsfaithfully applying C]~e~ery. The court acknowledgedthat the BIA "may have treated Ochoa’s motion underthe rubric of 8 C.F.R. §1003.2(c)," which governs timelymotions by a party, because "BIA noted that Ochoa’smotion is ’timely,’ a determination pertinent under§1003.2(c)," and "used Matter of Coelho ... as itsgoverning legal standard in evaluating Ochoa’sevidence." App.6a. But it somehow concluded,nevertheless, that "the Board’s treatment of themotion [wa]s unclear .... " Id. Without deciding how theBIA actually treated Ochoa’s motion, the court ofappeals proceeded to construe the motion for itself, anddetermined that Ochoa’s failure to cite §1003.2(c),coupled with her use of the phrase "sua spot,re,"transformed her concededly timely motion to reopeninto a limited request for s~ta spot,re reopening.Indeed, the court made clear that it would haverecharacterized Ochoa’s motion, just the same, hadBIA clearly treated it as a timely motion by a party.

That utter disregard for the BIA’s treatment ofOchoa’s motion flies in the face of this Court’s

14

admonition in (~he~e~’y that the propriety of agencyaction must be evaluated based on the rationaleproffered by the agency itself. If the basis for anagency’s decision is "unclear," this Court’s precedentsdictate that the proper course is a remand to theagency for further explanation. A court of appeals "isnot generally empowered to conduct a de ~ovo inquiryinto the matter being reviewed and to reach its ownconclusions based on such an inquiry." Florida Power~c Light Co. v. Lorio~, 470 U.S. 729, 744 (1985). Thecourt of appeals’ error on this score is sufficiently plainand egregious that summary reversal is warranted.See, e.g., INS v. Ve~t~ra, 537 U.S. 12, 16 (2002).

Summary reversal on this issue is especiallyappropriate because the panel majority’s constructionof Ochoa’s motion is utterly implausible, and it servedto deprive Ochoa of the judicial review to which she isentitled. The government had no trouble decipheringwhat was clear as day on the face of the BIA’sdecision--that Ochoa’s motion to reopen was a timelymotion by a party, and that BIA’s decision to deny itwas therefore (uncontroversially) subject to judicialreview under the familiar abuse-of-discretionfl’amework. See Resp’t Br. at 8 (Sth Cir. Mar. 31, 2010).Indeed, when asked for a response to Oehoa’s petitionfor rehearing, the government could not bring itself todefend this aspect of the panel’s decision. See Reh’g0pp. at 2, 4; App.Sa (Colloton, J., dissenting from denialof panel rehearing).

The Petition should be granted, and the ease shouldbe set for briefing and argument or summarilyreversed.

15

I. THE EIGHTH CIRCUIT’S DECISIONDEEPENS AN ENTRENCHED CIRCUITCONFLICT ON WHETHER BIADECISIONS DENYING MOTIONS TORE OPE N "S UA SPONTE" ARECATEGORICALLY UNREVIEWABLE

Under §701(a)(2) of the APA, federal courts maynot review agency action "committed to agencydiscretion by law." How to determine whether finalagency action falls within that bar on judicial review isthe subject of considerable debate among the lowercourts.

This Court has held that §701(a)(2) "is a verynarrow exception ... applicable in those rare instanceswhere ’statutes are drawn in such broad terms that inany given case there is no law to apply,’" Citizens toPreserve Overto~ Park, Inc. v. Volpe, 401 U.S. 402, 410(1971) (quoting S. Rep. No. 79-752 at 26 (1945)), orwhere there are no "meaningful standard[s] againstwhich to judge the agency’s exercise of discretion,"Heckle)" v. C]~aney, 470 U.S. 821, 830 (1985). ThisCourt explained in Heckler that §701(a)(2) importspragmatic, "common law" principles governing thejudicial review of agency action. Id. at 831-33. A courtdetermining whether agency action is "committed toagency discretion by law" must consider whether thataction is of a type that "tradition, case law, and soundreasoning" would place beyond judicial scrutiny. Id. at831.

Here, having determined that Ochoa’s motion toreopen was solely a request for BIA to reopen her casesua sponte, the Eighth Circuit held that BIA’s decisionwas "committed to agency discretion by law" under§701(a)(2). The court held that review is precluded

16

categorically when the BIA addresses motions toreopen s~.a spo~tte, and it therefore never consideredthat the BIA’s denial of reopening in this particularease turned on the application of familiar legalstandards rather than a weighing of policy or otherfactors that are characteristic of purely discretionarydecisions. In so holding, the Eighth Circuit aligneditself with the Fourth and Sixth Circuits in conflictwith decisions of at least six other courts of appeals.Had this ease arisen in any of those other circuits,Oehoa’s petition for review would have beenentertained on the merits. This threshold jurisdictionalquestion is a recurring one of great significance, andthis Court’s precedents east serious doubt on theEighth Circuit’s holding. This Court should grant thisPetition to resolve the circuit split and ensureuniformity with its decisions.

A. The Decision Below Deepens AnEntrenched Circuit ConflictConcerning Whether BIA’s DenialOf A Motion To Reopen Sua SponteIs Categorically Exempt FromJudicial Review

In K~ca~a, this Court expressly reserved thequestion of whether a denial of a motion to reopen s~aspo~tte is "committed to agency discretion by law,"observing that eleven courts of appeals had soconcluded. K~ca~a, 130 S.Ct. at 839 n.18. Althoughperhaps superficially aligned, the courts of appeals hadin fact adopted materially different approaches to the§701(a)(2) question where, as here, the agency’sdecision turns on questions of law. The lower courts’division has persisted after K~ca)~a, and the

17

entrenched circuit conflict warrants this Court’simmediate intervention.

With the decision below, the Eighth Circuit hasjoined the Fourth and Sixth Circuits in holding thatreview is never available for denials of s~a spot,rereopening--even in cases, like this one, that involvequestions of law. Mose~’e v. M~kasey, 552 F.3d 397, 400(4th Cir. 2009) (stating categorically that there is nojurisdiction to review s~ta spot,re denials of reopening);Got v. Holder, 607 F.3d 180, 187 (6th Cir. 2010) (same).

At least three other circuits (the First, Second,Third) have held that review of such decisions isavailable in cases where the BIA decision rests on alegal determination, and another (the Seventh) hasstrongly indicated that it shares that view. SeeMah.~ood ~. Holder, 570 F.3d 466, 469 (2d Cir. 2009)("[W]here the Agency may have declined to exerciseits s~ta sponte authority because it misperceived thelegal background ..., remand to the Agency forreconsideration in view of the correct law isappropriate."); D~arte-Ceri v. Holder, 2010 WL4968689, at *2 (2d Cir. 2010) (same); L~is v. INS, 196F.3d 36, 41 (1st Cir. 1999) (due process claimreviewable under Heckler even though BIA’s decisionnot to reopen s~a spo~tte generally is not); Cr~tz v.Attor.~zey Ge.~zeral, 452 F.3d 240, 250 (3d Cir. 2006)(dividing denials of sua spo~zte reopening into twocategories, "unreviewable decision[s] to grantdiscretionary relief and reviewable decision[s] thatalien is legally i.~zeligible for discretionary relief")(citing Pi~lto v. Go~zalez, 432 F.3d 193 (3d Cir. 2005)(emphasis added)); see also Ce~,illa v. Gonzales, 446F.3d 658, 660-61 (7th Cir. 2006) (Posner, J.) ("no law toapply" doctrine bars review only when "the Board’s

18

order that was sought to be reviewed was indeed basedon an exercise of uneabined discretion rather than onthe application of a legal standard"; in any event, thedoctrine "has been superseded in the immigrationcontext" by the INA), cert. de~zied, 552 U.S. 826 (2007);M~zoz de Real v. Holder, 595 F.3d 747, 750 (TthCir. 2010) (reviewing BIA’s refusal to reopenspo~zte for abuse of discretion).3

This circuit conflict has persisted since K~cana andshows no signs of abatement. Several circuits haveexplicitly declined to revisit their sz~a spo)zte reopeningprecedents in light of K~ca)za. See App.6a n.8spo~te decisions categorically unreviewable even afterK~ea~za); Go~’, 607 F.3d at 197 (e~ baize court declinedto revisit circuit precedent in light of K?~c~)~(~, despitepanel opinion urging court to do so); Neves v. Holder,613 F.3d 30, 35 (lst Cir. 2010) (concluding, on remandfrom this Court in light of K~ea~za, that K~ca~za "doesnot affect" circuit precedent concerning the

3 Although the Eighth Circuit remarked in dicta inthat federal courts "generally do have jurisdiction over anycolorable constitutional claim," 521 F.3d at 1005, it did not have toreach that question because it found that Tamenut had not raisedsuch a claim. And the circuit precedent cited in Tame~tt for thisproposition did not involve a motion to reol)en (saa .spot,re orotherwise). Nor does l’c~me~ttt’s holding carve out an exceptionfor review where the BIA has decided other questions of law.Thus, the Eighth Circuit’s holding in this case--that it may notreview for abuse of discretion BIA’s rejection of Ochoa’sineffective assistance claim--aligns the Eighth Circuit with theSixth and Fourth, against the weight of authority.

The Fifth Circuit appears to have taken yet a third approach,reviewing such decisions only when they raise a colorableconstitutional claim. See Nawaz c. Holder, 314 F. App’x 736, 737(5th Cir. 2009).

19

reviewability of BIA decisions on motion to reopen snaspo~te); Gashi v. Holder, 382 F. App’x 21, 23 (2d Cir.2010) (Because Kucana "declined to reach the issue,"circuit precedent "remains good law."); Ozeiry v.Attor.~ey Ge)z, No. 09-3828, 2010 WL 3920522, at *2 (3dCir. 2010) (same); Jaimes-Aguivre v. U.S. AttorneyGent., 369 F. App’x 101, 103 (11th Cir. 2010) (same).Notably, in Neves, the government had "recommendedthat the case be granted, vacated, and remanded inlight of K~ca.~a," 613 F.3d at 33, and this Courtobliged, Neves v. Holder, 130 S.Ct. 3273 (2010).

Because BIA’s decision denying Ms. Ochoa’s motionto reopen was based on the agency’s legal conclusionsthat Ochoa had not demonstrated ineffective assistanceof counsel and had not satisfied 8 C.F.R. §1003.2(c), herpetition for review would have been considered on itsmerits in the majority of circuits that have addressedthe issue. This Court should grant the Petition toresolve the circuit conflict.

B. The Eighth Circuit’s HoldingCannot Be Reconciled With ThisCourt’s Precedents

In Tame~t v. M~tkasey, relied on by the court ofappeals in this case, the BIA had denied Tamenut’suntimely motion to reopen removal proceedings, whichinvoked BIA’s authority to "reopen ... on its ownmotion," "at any time," "any case in which it hasrendered a decision." 8 C.F.R. §1003.2(a); see 521 F.3dat 1002.4 The BIA had "acknowledged it retained

4 Two separate panels of that court had previously concluded

that it did not, Recio-P~’ado ~:. Go~za~es, 456 F.3d 819,821-22 (SthCir. 2006), and Gha.~’emi~wl~r v. Go~zale~s’, 427 F.3d 1160, 1162 (SthCir. 2005).

20

’limited discretionary powers’ under §1003.2(a) toreopen proceedings on its own motion, but stated thatthis power is confined to ’exceptional situations,’ andconcluded that Tamenut’s situation did not merit thisrelief." Tc~e~t, 521 F.3d at 1002.

Addressing its jurisdiction, the Eighth Circuitconcluded that IIRIRA’s jurisdiction-strippingprovision (lid not preclude review. Id. at 1003. Thecourt perceived "~o[] m~teri~l differe~ce" in thatregard "between the BIA’s decision to deny a party’smotion to reopen and the BIA’s decision to refuse aparty’s request that the agency reopen proceedings onits own motion." Id. (emphasis added).

Having determined (correctly, see K~ca.no, 130S.Ct. at 831) that IIRIRA posed no obstacle to itsreview, the court of appeals then considered whetherreview was nevertheless precluded by §701(a)(2).Tame~t, 521 F.3d at 1003. The court first noted thatthe "statute governing motions to reopen speaks onlyto motions filed by a party," and that the relevantregulation, "8 C.F.R. §1003.2(a), provides no guidanceas to the BIA’s appropriate course of action ... andspecifies no standards for a court to use to cabin theBIA’s discretion." Id. at 1004. The court added that"It]he use of permissive and discretionary language inthe first sentence of §1003.2(a) further supports theinference that the agency action is unreviewable." Id.Finally, although the BIA had held that "it may reopenproceedings on its own motion in ’exceptionalsituations,"’ and although "agency decisions about thepresence of ’exceptional circumstances,’ a similarphrase, are reviewable for abuse of discretion in somecontexts, ... there is no statutory, regulatory, or case-law definition of ’exceptional situation’ applicable to the

21

BIA’s s~a spot,re power under §1003.2(a)." Id. at 1004-05.

Judge Beam dissented. In his view, the body ofagency law reopening cases in "exceptionalcircumstances[,] ... combined with case law pertainingto when exceptional circumstances have been found[,]ought to be sufficient for us to unearth a meaningfulstandard of review." Id. at 1006 (Beam, J., dissenting).Judge Beam cautioned that "[g]iving unfetteredauthority to administrative agencies to strip ourjurisdiction is a slippery slope," and one that need notbe tread, in light of the ’"strong presumption in favor ofjudicial review of administrative action.’" Id. at 1007(quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)).

1. BIA’s Sua Sponte ReopeningDecisions Are ReviewableUnder Kucana and Heckler

In K~ca~a, this Court held that the jurisdiction-stripping provision of IIRIRA does not bar judicialreview of a BIA decision denying an alien’s motion toreopen removal proceedings. 130 S.Ct. at 834.Reasoning from the text, structure, and history of thatstatute, and mindful of the strong presumptionfavoring review of agency action, this Court held that§1252(a)(2)(B)(ii) bars review only of decisions madediscretionary by the INA itself, and not of decisionsmade discretionary by regulations promulgatedpursuant to the INA. Otherwise, this Court observed,"the Executive would have a free hand to shelter itsown decisions fi’om abuse-of-discretion appellate courtreview simply by issuing a regulation declaring thosedecisions "discretionary." K~ca)~a, 130 S.Ct. at 840.

The BIA’s authority to reopen proceedings--s~aspot,re or otherwise--is made discretionary by

22

regulation. Under K~tca~a, IIRIRA does not barjudicial review of such decisions. Id. at 831. The Courtin K~tco~o "express[ed] no opinion" on whether theAPA might nevertheless bar federal-court review of"the Board’s decision not to reopen removalproceedings s~a spo~te." Id. at 839 n.18 (citingTo~e~t). But K~co~a’s reasoning refutes the positionof the Fourth, Sixth, and Eighth Circuits that all suchdecisions are categorically unreviewable. Indeed, thelogic of K~.~c~.a suggests strongly that appellate courtsmay generally review such decisions.

The very same statute that provided for appellatejurisdiction over the reopening determinations at issuein Kuca’~a provides for appellate jurisdiction over suas#o~te reopening determinations. See 8 U.S.C. §1252(providing generally for jurisdiction over orders ofremoval and exceptions thereto). And the very sameregulation that placed the decision to reopen "withinthe discretion of the Board" in Kuc(~a applies to suaspot,re determinations as well. S’ee 8 C.F.R. §1003.2(a).Indeed, the regulation does not make a)ty distinctionbetween "s~ta spot,re" reopening and reopening inresponse to a timely motion.

Section 1229a(c)(7)(A) states that "[a]n alien mayfile one motion to reopen proceedings under thissection." The Attorney General has interpreted thatprovision to permit a second motion to reopen based on"changed circumstances arising in the country" ofremoval. 8 C.F.R. §1003.2(e)(3)(ii). K~zca,~a involvedsuch a motion. See 130 S.Ct. at 841 n.2 (Alito, J.,concurring in the judgment) ("Petitioner challenges thedenial of his seco)~d motion to reopen .... ") (citing U.S.Brief) (emphasis added). But the Attorney Generalsurely could revise the regulation to conform to the

23

statutory minimum of "one motion to reopen" as ofright. The consequence would be that a successivemotion to reopen--like Mr. Kueana’s--would fall underBIA’s authority to reopen "on its own motion" "at anytime." 8 C.F.R. §1003.2(a). If the Eighth Circuit werecorrect that all such reopening decisions arecategorically unreviewable, the Attorney General couldaccomplish by regulation precisely the result rejectedin Kz~car~a (rendering the decision on Kueana’s secondmotion unreviewable).

Whatever else is true, K~ca)~a makes clear that theterms of the Attorney General’s regulation are notdispositive. See ge~erally U.S. K~cana Br.; U.S.K~ca~a Reply Br. (Nov. 3, 2009). Yet, the basis of theEighth Circuit’s holding is precisely that §1003.2(a)defines the BIA’s discretion over s~ta spo’~te reopeningso broadly that it precludes judicial review under theAPA. See Tame~tt, 521 F.3d at 1003-04.

In holding that the appellate courts retainjurisdiction to review the BIA’s equally unfettereddiscretion to deny motions to reopen by a party,K~cana nowhere suggests that review of thosedecisions might be impeded by the APA because of adearth of meaningful standards to apply. ~f Overto~Park, 401 U.S. at 410. And rightly so: the courts ofappeals "routinely review BIA decisions denyingmotions to reopen uSthout encountering any obstaclecreated by a lack of meaningful standards of review."Got, 607 F.3d at 197 (Cole, J., concurring). As thisCourt noted in Kuca~ta, "[f]ederal-court review ofadministrative decisions denying motions to reopenremoval proceedings dates back to at least 1916." 130S.Ct. at 834 (citing Dada v. M~kasey, 128 S.Ct. 2307,2314-15 (2008)). Indeed, "It]his Court has ultimately

24

reviewed reopening decisions on numerous occasions."Id. (collecting cases).

Congress obviously was well aware of this longtradition of appellate-court review of such decisions.Section §1252(b)(6) of the INA requires a court ofappeals to consolidate a petition for review of a denialof reopening with a petition for review of theunderlying removal order. 8 U.S.C. §1252(b)(6). Asthe government pointed out in K~tca~a, "[t]here wouldhave been no need to provide for consolidation if thedenial of a motion to reopen were not reviewable atall," U.S. K~.~cct~a Reply Br.18, whether due to IIRIRAor §701(a)(2)’s bat’.

Nothing in this Court’s decisions construing§701(a)(2) suggests that there is a distinction betweentimely and untimely motions to reopen--all of whichare governed by the same "discretionary" regulation--that would render the latter categorically immune fromjudicial scrutiny. There is just as much "law to apply"in the s~a spo)tte context as there is on review of adenial of a party’s timely motion to reopen. OvertonPark, 401 U.S. at 410.

Whether timely or untimely, there is no standardfor when BIA is "req~ired to reopen proceedings on itsown motion." Tame~t, 521 F.3d at 1005 (emphasisadded). The ultimate "decision to grant or deny amotion to reopen is within the discretion of the Board,"and the Board may "deny a motion to reopen even ifthe party moving has made out a prima facie case forrelief." 8 C.F.R. §1003.2(a). Not" would review intrudeupon the Executive’s prerogative to make the ultimatedetermination, as ’"a matter of grace, ... whether alienscan stay in the country or not."’ K~tca~a, 130 S.Ct. at837 (quoting Tr. of Oral Arg. at 14). As with the

25

reopening decision held reviewable in K~ca~a, adecision to deny a motion to reopen sua spot,re is an"adjunct ruling[]" that "ordinarily ... touches andconcerns only the question whether the alien’s claimshave been afforded a fair hearing." Id. Accordingly,sua sponte reopening determinations are not of a "likekind" with the ’"substantive decisions" that Congressexpressly committed to executive discretion by statute.Id. (e.g., waivers of inadmissibility based on certaincriminal offenses, §1182(h), or based on fraud ormisrepresentation, §1182(i), and other substantivedeterminations). Accordingly, the mere fact that theultimate substantive decision whether to allow an aliento remain in the country may be unreviewable does notcounsel against review "to ensure ’that aliens [a]regetting a fair chance to have their claims heard.’" Id. at837 (quoting Tr. of Oral Arg. at 17).

Nor does the Board’s refusal to reopen s~ta sponteturn on complex questions of agency resourceallocation. Heckler, 470 U.S. at 831-32. And unlike theagency decision not to undertake enforcement actionheld unreviewable in Heckler, a BIA decision refusingto reopen sua spot,re occurs after the culmination of aremoval proceeding, which produces an administrativerecord that "provides a focus for judicial review." Id.at 832.

Decisions on a motion to reopen sua spo~te are cutof the same cloth as various other decisions that thefederal courts review ~Sth regularity in bothadministrative and non-administrative arenas. Thedecision to deny reopening is susceptible to abuse-of-discretion review, see K~..ca~a, 130 S.Ct. at 840;whether the motion is timely or not does not transformBIA’s decision into one that "involves a complicated

26

balancing of a number of factors which are peculiarlywithin [the agency’s] expertise." Heckler, 470 U.S. at831.

2. Heckler does not precludereview to the extent that anagency has resolved a questionof law

Even if s~a spot,re reopening decisions were notgenerally reviewable, Heckler is no bat" to reviewwhere an agency decides questions of law. In Heckler,this Com’t applied §701(a)(2) and held that the FDA’srefusal to initiate enforcement action was notsusceptible to judicial review. That decision was"attributable in no small part to the generalunsuitability for judicial review of agency decisions torefuse enforcement." Id.

Other decisions holding that §701(a)(2) bars revieware of a similar ilk. In Li~.coln v. Vigil, 508 U.S. 182,192 (1993), for example, the Court held that an agency’sallocation of funds in a lump-sum appropriation wasunreviewable, because "the very point of a lump-sumappropriation is to give an agency the capacity to adaptto changing circumstances ... in what it sees as themost effective or desirable way." The Court other~4sehas "limited the exception to judicial review providedby 5 U.S.C. §701(a)(2) to cases involving nationalsecm’ity, such as Webster v. Doe, [486 U.S. 592 (1988),]and Departme~t ofN(~,y ~,. Ego,s, [484 U.S. 518 (1988),]or those seeking review of refusal to pursueenforcement actions." Fra~tklS~ ~,. Massach~setts, 505U.S. 788, 818 (1992) (Stevens, J., concurring).

Outside of these distinct, policy-based areas inwhich the eom’ts "have long been hesitant to intrude,"id. at 819, this Com’t has refused to declare the federal

27

courts incompetent to perform appellate review exceptin those rare circumstances when it has concluded thatthere is effectively " ’no law to apply’ " to the question,id. (quoting Overto)~ Pa~’l~, 401 U.S. at 410). Inevaluating whether there is "no law to apply," theCourt has focused on whether a given decision can beevaluated under a "judicially administrable standard ofreview." Id. at 820.

"S~a spot,re" decisions of the character at issuehere--denying reopening on the ground that theapplicant failed to meet a legal standard established byease law, regulation, or statute, or decisions raising aeolorable constitutional question-- are different in kindfrom the sort of agency i)~action that this Court refusedto review in Hectder. Such decisions are also not akinto questions of proseeutorial discretion, or matters ofpolicy typically outside the traditional review authorityof the courts. They instead involve issues in theheartland of judicial competence that affect anindividual’s liberty and thus "infringe upon areas thatcourts often are called upon to protect." Heckle~~, 470U.S. at 832. Several circuits correctly conclude thatthey are reviewable, and the Eighth Circuit’s contraryholding should be reversed.

At a bare minimum, the decision at issue in this easeis reviewable. Even assuming that a single obtusesentence in Oehoa’s timely motion to reopen can beread to invoke solely the BIA’s s~a spot,re authority,the BIA’s decision denying that motion is in allmaterial respects identical to the BIA decision heldreviewable in Kz~ca)~a. Unlike the mine run of easesinvolving BIA s~ spo~e decisions, this ease doesimplicate an agency’s discretion to forgive an untimelyfiling; both the BIA and the court of appeals explicitly

28

acknowledged that Ochoa’s motion was timely. Thiscase does involve, however, BIA’s application of legalstandards--including the ineffectiveness-of-counselinquiry--that are well suited to this Court’s review.The fact that Ochoa incanted the phrase "s~a spo~te"in her motion does not make the BIA’s review anymore discretionary, or somehow result in less "law toapply." The Eighth Circuit’s categorical refusal toconsider the character of the BIA’s decisio~ it wasasked to review thus contravenes this Court’s decisionsirrespective of whether s~ta spo~te denials (or even asubset of such denials) are generally reviewable.

C. The Petition Presents A RecurringIssue Of National Importance

This case involves the power of the federal courts toentertain a challenge to final BIA action where theBoard’s decision raises legal issues that the courts arewell-equipped (and designed) to evaluate. Thequestion presented goes to the proper balance of powerbetween the Judiciary and the Executive. This courthas frequently granted certiorari in like cases wherelower courts have adjudged themselves incompetent toreview entire categories of final agency action.e.g., K~tca~za v. Holder’, 129 S.Ct. 2075 (2009) (grantingcertiorari over the government’s opposition); cf.Pe~sio~ Be~fit G~a~’. Corp. v. LTV Corp., 496 U.S.6:33, 644 (1990) (certiorari granted "because of thesignificant administrative law questions raised").

Moreover, the context in which this question arisescounsels in favor of this Court’s review.’"[D]eportation is a drastic measure and at times theequivalent of banishment or exile."’ Jorda~z v.DeGeorge, 341 U.S. 223, 231 (1951). This Court hasvery recently reminded that reopening is an

29

’"important safeguard"’ designed to "’ensure a properand lawful disposition"’ of an alien’s case. K~ca~a, 130S.Ct. at 834 (quoting Dada, 128 S.Ct. at 2318).Whether a subset of such motions is categoricallydisentitled to the equally important safeguard ofjudicial scrutiny is a question worthy of this Court’splenary review.

The Eighth Circuit’s deeply flawed decision reflectsa longstanding and broader confusion in the lowercourts as to the scope of §701(a)(2)’s narrow exceptionto judicial review of final agency action. Despite thisCourt’s pronouncements on the subject, the courts ofappeals remain hopelessly confused about how" todetermine whether agency actions are "committed toagency discretion by law" and thus unreviewable. See,e.g., Ronald M. Levin, Understar~di~g U~reviewabilityin Admi)~istrative Law, 74 Minn. L. Rev. 689, 734-40(1990).

The lower courts’ widespread confusion about thescope of §701(a)(2) has also led to conflictingconclusions concerning the reviewability of other typesof BIA action--for example, decisions to denyadministrative closure or affirm without opinion.Compare Herna~dez v. Holder, 606 F.3d 900, 904 (SthCir. 2010) and Diaz-Covarr~.bias v. M~kasey, 551 F.3d1114, 1118 (9th Cir. 2009) (holding they are notreviewable) with Ca)d~t-Delgadillo v. Holder, 584 F.3d682, 686 (5th Cir. 2009); Garza-More~o v. Go~zales, 489F.3d 239, 243 (6th Cir. 2007); Vahora v. Holder, 626F.3d 907, 919 (7th Cir. 2010) ("The decisio~ to co~tinuea matter ... simply is not the sort of decision that’involves a complicated balancing of a number of factorswhich are peculiarly within [the agency’s] expertise.’")(quoting Heckle~’, 470 U.S. at 831, 832). Compare

3O

Hao~td v. Asl~crqft, 350 F.3d 201, 206 (lst Cir. 2003);S~riko ~,. As/~croft, 387 F.3d 279, 291 (3d Cir. 2004);and Clte~ v. Asl~c~’oft, 378 F.3d 1081, 1087 (9th Cir.2004), wit]~ Ka~bolli v. Go~zales, 449 F.3d 454, 460-65(2d Cir. 2006); Tsegay v. Ashcroft, 386 F.3d 1347, 1353-56 (10th Cir. 2004); anti Ng~tre ~,. Asltcroft, 367 F.3d975,981 (Sth Cir. 2004).

The lower courts’ confusion about §701(a)(2) is ofcourse not confined to the BIA context, but affects thecourts’ appellate review of agency action generally.Granting review in this case will afford this Court anopportunity to provide much needed guidance to thelower courts on the proper limits of §701(a)(2)’s narrowexception to judicial review.

II. THE EIGHTH CIRCUIT’S DECISIONCONTRAVENES CHENERY

The court of appeals acknowledged that the BIA"may have treated Ochoa’s motion under the rubric of 8C.F.R. §1003.2(c)," which governs timely motions by aparty, because "BIA noted that Ochoa’s motion is’timely,’ a determination pertinent under §1003.2(c),"and "used M(~tter of Coelho ... as its governing legalstandard in evaluating Ochoa’s evidence." App.6a. Butit somehow concluded, nevertheless, that "the Board’streatment of the motion [wa]s unclear." Id. Withoutfinally deciding how the BIA treated Ochoa’s motion,the court of appeals proceeded to construe the motionfor itself, and determined that Ochoa’s failure to cite§1003.2(c), coupled with her use of the phrase "suaspot,re" transformed her concededly timely motion toreopen into a limited request for s~a spot,re reopening.Perhaps most remarkably, the court stated that itwould have reached the same result even if it were

31

clear that "the BIA addressed the merits of Ochoa’sclaim under a § 1003.2(c) analysis." App.Sa.

As Judge Colloton’s dissenting opinions recognize,the court of appeals’ decision blatantly disregards thestated basis of the BIA’s decision and construesOchoa’s motion in a manner that defies common sense.The BIA’s finding that Ochoa’s motion to reopen was"timely" makes sense only if it interpreted her motionas one by a party, as such motions must be filed within90 days of a final Board decision. The BIA alsoaddressed the merits of Oehoa’s motion with referenceto regulations and precedent that govern such motions.And, as Judge Colloton observed, there is not a even a"hint" in the BIA’s decision that it considered (even inthe alternative) whether it should exercise itsdiscretionary authority to reopen s~,a sponte (in starkcontrast to the decision at issue in Tame)~,,t, on whichthe court of appeals relied). App.lla; see Tame~?~t, 521F.3d at 1003-04.

The court of appeals’ holding squarely contravenesChef,cry. Under Che~r~ery and its progeny, this Courthas long adhered to the "simple but fundamental rule ofadministrative law" that a com’t is "powerless to ...substitut[e] what it considers to be a more adequate orproper basis" for an agency’s explanation of its action.SEC v. Che)tery Corp. 332 U.S. 194, 196 (1947)("Chef,cry II") (emphasis added). Because a "judicialjudgment cannot be made to do service for anadministrative judgment," Che)~.ery I, 318 U.S. at 88,agency action must stand or fall "’on the same basisarticulated in the order by the agency itself,’" FPC v.Texaco I)tc., 417 U.S. 380, 397 (1974) (quotingBurli~gton Tr~ck Li~es, I~c. v. U~ited States, 371 U.S.156, 169 (1962)). Accordingly, the court of appeals was

32

not fi’ee to construe Ochoa’s motion afresh as a requestfor s~a spot,re relief.

Because the Eighth Circuit’s decision squarelycontravenes this Court’s most fundamental holdingsconcerning the limits of judicial power, it wouldwarrant summary reversal or plenary review even if itwere an isolated, aberrant decision. It cannot be soswiftly dismissed, however. Several circuit courts,including the Eighth Circuit, have repeatedlydemonstrated a willingness to affirm agency action ongrounds not relied upon by the agency, in conflict withChef,cry and the decisions of other circuits. See, e.g.,Otter Toil Power Co. v. STB, 484 F.3d 959, 963 (Sth Cir.2007) (holding that a party waived an argument byraising it "fatally late" before the agency, even thoughthe agency had resolved the issue on its merits); BNSFRy. Co. v. STB, 604 F.3d 602, 604 (D.C. Cir. 2010)(affirming STB decision on administrative forfeituregrounds not relied on by the Board, even though theBoard had resolved the argument on its merits); Rowev. S~,llit,(,~, 967 F.2d 186, 191 (5th Cir. 1992) (agencyfinding that complaint is "timely" does not preventagency’s counsel fl’om asserting timeliness defense insubsequent litigation); b~t see Ester v. Pri~cipi, 250F.3d 1068, 1071-72 (7th Cir. 2001) ("[W]hen an agencydecides the merits of a complaint" court may not avoidreview on procedural gn’ounds) (citing Chenery II);Abebe v. Go~zales 432 F.3d 1037, 1041 (9th Cir. 2005)(en banc) (court may not avoid consideration of an issueon administrative forfeiture grounds when the agency"has ignored a procedural defect and elected toconsider an issue on its substantive merits"); Sidab~ttarv. Go~zales, 503 F.3d 1116, 1120 (10th Cir. 2007) (same).

Even if the BIA’s decision were "unclear," as the

33

court of appeals found, this Court’s decisions commandthat the proper course would have been to remand tothe agency for further explanation. This Court hasemphasized "an important corollary of’ Cl~e)~ery’sbedrock rule: "If the administrative action is to betested by the basis upon which it purports to rest, thatbasis must be set forth with such clarity as to beunderstandable." Clte~ery II, 332 U.S. at 196. Anappellate may not "guess at the theory underlying theagency’s action," id. at 196-97, because an agency’s"action must be measured by what [it] did, not by whatit might have done." Cl~enery I, 318 U.S. at 93-94. ThisCourt has on numerous occasions summarily reverseddecisions that disregard Cltenery’s admonition. See,e.g., INS v. Ventura, 537 U.S. 12, 16 (2002) (summarilyreversing court of appeals for failure "’to remand to theagency for additional investigation or explanation’")(quoting Fla. Power & Light Co. v. Lorio~, 470 U.S.729, 744 (1985) and citing Che)~e~y II); Go~zalez v.Tl~o~as, 547 U.S. 183, 186 (2006) (summarily reversingwhere court of appeals contravened Chef,cry andVe~t~tra by ’"conduct[ing] a de ~ovo inquiry into thematter being reviewed and ... reach[ing] its ownconclusions,"’ rather than remanding to the agency);U~io~ Pac. R.R. (~o. ~. Sl~eeha~, 439 U.S. 89, 92-93(1978) (summarily reversing where court of appeals’holding was based on either a "mistaken"characterization of Board’s decision or "exceeded thescope" of its authority to review Board action).

Other circuits have hewed to this fundamental ruleof administrative law in indistinguishablecircumstances, and the Eighth Circuit’s decision thuscreates a direct circuit conflict. See, e.g., Cr~.tz, 452 F.3dat 250 (remanding to B IA for further explanationwhere "presented with a ’jurisdictional conundrum’ in

~4

that we have no way of knowing whether the BIAdeclined to exercise its ,s~,a spot,re authority on areviewable or non-reviewable basis") (citing Ve~zt~z~’o);H~o~cl, 350 F.3d at 205 (remanding fox" clarification ofthe g~’ounds of BIA’s decision).

The court of appeals’ failure to heed Che~evy’scommand is especially eg~’egious because its ownconstruction of Oehoa’s motion is not plausible--onemight even say it was "arbitrary or eaprieious"--andserved to deprive her of the federal-court review towhich she is entitled under this Court’s decisions.Indeed, when asked fox" a response to Oehoa’s petitionfor rehearing, the government conspicuously declinedto defend this aspect of the decision. See Reh’g Opp. at2, 4; App.Sa (Colloton, J., dissenting from denial ofpanel rehearing).

35

CONCLUSIONFor the reasons set forth above, the petition for

certiorari should be granted, and the case should be setfor briefing and argument or summarily reversed.

Benjamin R. CasperIMMIGRANT LAW CENTER

OF MINNESOTA

450 N. Syndicate StreetSuite 175St. Paul, MN 55104(651) 271-6661

Dean C. EylerGRAY PLANT MOOTY

500 IDS Center80 South Eighth StreetMinneapolis, MN 55402(612) 632-3016

Respectfully submitted,

Richard P. BressLori Alvino McGill*

*Co~nsel qf RecordKerry J. Dingle*LATHAM & WATKINS LLP555 llth Street, NWSuite 1000Washington, DC 20004(202) 637-2200]ori.alvino.mcgill@lw.com

Co~tnsel for Petitio)~er

-Admitted to practice in Massachusetts; all work supervised by anattorney admitted to practice in the District of Columbia.