Kucana v. Mukasey

Agron Kucana, a citizen of Albania, entered the United States as a business visitor in 1995 and did not leave when his visa expired. He applied for asylum but, when he did not appear at the hearing in the fall of 1997, he was ordered removed in absen-tia. He soon filed a motion to reopen, contending that he had overslept. An immigration judge denied that motion, and in 2002 the Board of Immigration Appeals affirmed. Kucana did not seek judicial review — -nor did he comply with the order to quit the United States. In 2006 Kucana filed another motion to reopen, this time contending that country conditions in Albania had deteriorated and that he would *536be a victim of persecution should he return there. Kucana, who describes himself as a supporter of democracy and free markets, contends that holders of these views are at risk of beatings and murder in Albania. The immigration judge denied this motion, and on appeal the Board held that the IJ lacked jurisdiction, because successive motions to reopen must be filed directly with the Board itself.

Treating Kucana’s papers as a (second) motion to reopen, the Board denied that relief because conditions in Albania have improved since 1997. In 2006 a “Stabilization and Association Agreement” between Albania and the European Union was ratified. In 2007 a visa agreement was reached, so Albanians can travel throughout the EU. Albania is today a democratic nation with international guarantees of human rights; there have been no reported political killings or detentions for years.

Kucana argues in this court that the Board abused its discretion because it did not mention Professor Bernd Fischer’s affidavit discussing conditions in Albania. Abuse of discretion is the right standard. No statute requires the Board to reopen under any circumstances, and a regulation confirms that the Board has discretion to deny relief even to an alien who would have received a favorable decision, had the argument been presented earlier. 8 C.F.R. § 1003.2(a). It is difficult to perceive an abuse of discretion, for Prof. Fischer’s affidavit does not document a change in Albanian conditions since 1997; it is instead a historical narrative reaching back to the time when Albania was a totalitarian dictatorship. But the parties’ agreement that “abuse of discretion” is the standard of review led us to wonder whether we should be considering Kucana’s argument at all.

As amended by the Real ID Act of 2005, the Immigration and Nationality Act limits federal courts’ jurisdiction to review discretionary decisions of immigration officials. Section 242(a)(2)(B)(ii) of the Act, 8 U.S.C. § 1252(a)(2)(B)(ii), provides that no court has jurisdiction to review “any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.” Section 1158(a) deals with applications for asylum, but the decision that Kucana wants us to review is not one “under § 1158(a)”; it is a decision not to reopen, and thus not to revive a request for asylum that had been abandoned in 1997 when Kucana failed to attend the hearing scheduled to address that subject.

Recently this circuit addressed the question — on which other courts of appeals are divided — whether § 1252(a) (2) (B)(ii) applies when the agency’s discretion is specified by a regulation rather than a statute. After the parties filed their briefs in this case, we held in Ali v. Gonzales, 502 F.3d 659 (7th Cir.2007), that § 1252(a)(2)(B)(ii) applies to discretionary decisions under regulations that are based on and implement the Immigration and Nationality Act. The discretionary decision in Ali was whether to grant an alien’s request for a continuance of a hearing; here the discretionary decision is whether to reopen the proceeding and hold a new hearing. Regulations specify that both decisions are discretionary; both regulations draw their force from provisions in the Act allowing immigration officials to govern their own proceedings. See 8 U.S.C. § 1229a(c)(7) (authority for reopening by Board). It follows that they are equally subject to § 1252(a)(2)(B)(ii).

We asked the parties for post-argument memoranda on the effect of Ali and *537§ 1252(a)(2)(B)(ii). Surprisingly, the Department of Justice argued that § 1252(a)(2)(B)(ii) does not cover decisions not to reopen. The principal reason for this conclusion (at least the one to which the memorandum devotes the most space) is that in cases such as Kucana’s the Board is making a factual decision (whether country conditions have worsened) rather than a discretionary one. This does not begin to distinguish Ali. Before deciding whether to grant a continuance (the discretionary decision), an immigration judge must decide whether there is a good reason for more time, which depends in turn on whether the statements of fact said to constitute the good cause are true. Surely the evaluation of the alien’s circumstances cannot be reviewed notwithstanding § 1252(a)(2)(B)(ii) and Ali.

Every discretionary decision, unless made by the flip of a coin, rests on the tribunal’s appreciation of the state of the litigation and the state of the world. Section 1252(a)(2)(B)(ii) could not mean that a decision is unreviewable when made randomly or unthinkingly, but that if the agency pays attention to an application and has reasons for acting as it does, then those reasons can be reviewed (because in principle the reasons precede, and do not equal, the discretion). This is a stripe of argument that we have considered in other contexts and found wanting. See, e.g., Daniels v. Liberty Mutual Insurance Co., 484 F.3d 884 (7th Cir.2007) (prohibition on appellate review of remand orders does not leave the court of appeals free to review, as an independent matter, the reasons behind the order); Rubel v. Pfizer Inc., 361 F.3d 1016 (7th Cir.2004) (same). And we have applied that understanding to immigration law. See, e.g., Jiménez Viracocha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir.2007). One cannot review the subsidiary findings that motivate an order, when the order itself is unreviewable; that would be an advisory opinion. See Powerex Corp. v. Reliant Energy Services, Inc., — U.S. -, 127 S.Ct. 2411, 2419, 168 L.Ed.2d 112 (2007).

A second contention in the Department’s post-argument memorandum is that this court has already held § 1252(a)(2)(B)(ii) inapplicable to reopening decisions. The panel in Singh v. Gonzales, 404 F.3d 1024, 1026-27 (7th Cir.2005), said this:

Before 1996, the authority for motions to reopen derived solely from the regulations. Congress codified the motion to reopen process in 1996 in 8 U.S.C. § 1229a(c)(6), a provision within the sub-chapter referred to in [§ 1252(a)(2)(B)(ii)]. However, the statutory language only describes the contents of motions to reopen and the filing deadlines. Conspicuously absent is any specific language entrusting the decision on a motion to reopen to “the discretion of the Attorney General.” Moreover, a subsection of § 1252, the section that also contains the jurisdiction-stripping provision, provides that when a petitioner appeals a motion to reopen or reconsider an order, that appeal should be consolidated with the appeal of the underlying order. 8 U.S.C. § 1252(b)(6). That provision would be unnecessary if § 1252(a)(2)(B)(ii) deprived us of jurisdiction in the first place. See Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (noting that courts must construe statutes to give effect, if possible, to every provision).

This passage gives two reasons: first, that the extent of the Board’s discretion has been set by regulation rather than statute; second, that the clause allowing consolidation of challenges to original and reopening decisions would be unnecessary if § 1252(a)(2)(B)(ii) prevents review of decisions not to reopen. The first of these *538reasons is not tenable in this circuit after Ali. The second needs a fresh look.

The panel’s view in Singh was that consolidation of proceedings concerning direct and reopening decisions would be pointless, if orders denying reopening never were subject to judicial review. That was true when the panel issued its opinion (April 15, 2005) but is true no longer. On May 11, 2005, the Real ID Act, Pub.L. 109-13 Div. B Tit. I, took effect. Today decisions denying reopening are within our jurisdiction to the extent provided by § 1252(a)(2)(D):

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.

Because discretionary decisions now may be reviewed when they entail “constitutional claims or questions of law”, there’s nothing incongruous about the consolidation rule in § 1252(b)(6). Applying § 1252(a)(2)(B)(ii) to orders denying motions to reopen will not make any part of the statute unnecessary.

The Real ID Act not only changed the relation among statutory subsections but also alleviated the principal consideration that had led the judiciary to confine clauses such as § 1252(a) (2) (B) (ii) to the least scope they had to have. Judges were concerned that an elimination of all review would permit the agency to violate statutes and the Constitution at will. The enactment of § 1252(a)(2)(D) eliminates that reason for giving § 1252(a)(2)(B) a narrow reading — and, as the other arguments advanced in Singh also have been overtaken by events, we conclude that Singh must be overruled to the extent it holds § 1252(a)(2)(B)(ii) inapplicable to discretionary reopening decisions. This opinion has been circulated under Circuit Rule 40(e) to all active judges. A majority did not favor a hearing en banc. (Judges Flaum, Ripple, Rovner, Wood, and Williams voted in favor of a hearing en banc.)

What remains is the question whether Kucana has advanced any “constitutional claims or questions of law”. His brief does not phrase his contentions in those terms; the entire argument is that the Board abused its discretion. And although the ninth circuit might deem such an argument a proposition “of law” (because the law requires the Board not to abuse its discretion), see Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007), rehearing en banc denied, 504 F.3d 973 (9th Cir.2007) (O’Scannlain, J., and eight other judges dissenting), we explained in Jiménez Viracacha why Ramadan misreads § 1252(a)(2)(D).

Kucana offers a second argument in support of reopening: After 2002 his mother (who has become a citizen of the United States) filed on his behalf an application for a visa as an immediate relative. The Board did not mention this when declining to reopen his case. Although the Board does not have any obligation to write an opinion explaining each decision not to reopen, it does have an obligation to consider every argument made to it. Sometimes an opinion addressing one subject (such as asylum) while not mentioning another (such as an immediate-relative visa) may imply that the latter has been overlooked rather than decided. And we may assume for the sake of argument that ignoring a potentially dispositive issue is an error of law that would allow review under § 1252(a)(2)(D). The Board must exercise discretion; only when it has done *539so is its decision sheltered by § 1252(a)(2)(B)(ii).

This does not help Kucana, however, because he did not present to the Board any argument that his mother’s application justifies reopening to give him an opportunity to apply for adjustment of status. He attached the 1-130 immediate-relative form to his motion before the immigration judge but did not make any argument based on that visa application. Kucana’s appeal to the Board did not address this subject; all of his papers dealt exclusively with his contention that conditions in Albania have changed. So it is no surprise that the Board’s opinion did not address this subject; an agency need not respond to potential arguments lurking in the record but never advanced by counsel.

The petition for review is dismissed for lack of jurisdiction.