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Keywords

jurisdictionappealmotionregulationjudicial review
jurisdictionstatuteappealmotionregulationjudicial review

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Vela-Estrada v. Lynch

Facts

Vela-Estrada, a native and citizen of Guatemala, was admitted to the United States in 1989 as a lawful permanent resident. In 2005, he was convicted in Pennsylvania of delivery of a controlled substance. In 2013, the Department of Homeland Security instituted removal proceedings, charging Vela-Estrada as removable based on the narcotics conviction. The IJ found him removable as charged, and ordered him removed to Guatemala. Vela-Estrada was removed to Guatemala on June 20, 2013. He did not timely file a notice of appeal but instead filed a motion with the BIA requesting that it accept his late-filed appeal, referencing an attached exhibit, or alternatively that it certify the appeal pursuant to 8 C.F.R. 1003.1(c), due to the exceptional circumstances directly resulting from his ineffective assistance of counsel.

Vela-Estrada, a native and citizen of Guatemala, was admitted to the United States in 1989 as a lawful permanent resident. In 2005, he was convicted in Pennsylvania of delivery of a controlled substance. In 2013, the Department of Homeland Security instituted removal proceedings, charging Vela-Estrada as removable based on the narcotics conviction. The IJ found him removable as charged, and ordered him removed to Guatemala. Vela-Estrada was removed to Guatemala on June 20, 2013. Vela-Estrada did not timely file a notice of appeal, but instead filed a motion with the BIA requesting that it accept his late-filed appeal, referencing an attached exhibit, or alternatively that it certify the appeal pursuant to 8 C.F.R. 1003.1(c), 'due to the exceptional circumstances directly resulting from [Vela-Estrada's] ineffective assistance of counsel.'

Issue

Whether the appellate court has jurisdiction to review the BIA's decision not to certify an untimely appeal of an order of removal.

Whether the appellate court has jurisdiction to review the BIA's decision not to certify an untimely appeal of an order of removal.

Rule

The BIA has the discretion to accept an untimely appeal by certification under 8 C.F.R. 1003.1(c), and this decision is not subject to judicial review as it is committed to agency discretion by law.

Under the Administrative Procedure Act, judicial review is expressly foreclosed where '(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.' 5 U.S.C. 701(a). The BIA derives its discretionary authority to certify an untimely appeal from regulation, as opposed to statute.

Analysis

The court determined that the BIA's decision not to certify an untimely appeal is committed to agency discretion by law, as the governing regulation does not provide meaningful standards for judicial review. The court noted that the BIA has the authority to self-certify but has chosen not to do so in this case due to a lack of exceptional circumstances. The court referenced previous cases that have held similar certification decisions are unreviewable.

In light of the lack of meaningful guidance on how the BIA's discretion should be applied, two circuits have held that the BIA's certification decision is not subject to judicial review. See Liadov v. Mukasey, 518 F.3d 1003, 1010 (8th Cir. 2008) (certification decision committed to agency discretion by law due to '(1) the total absence of statutory standards, (2) the absence of meaningful guidance for applying the 'exceptional circumstances' standard in the regulation . . . and (3) the absence of a 'settled course of adjudication' that could establish a meaningful standard' (quoting Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008)); Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005) (certification decision 'beyond review' because of lack of 'standards to judge the BIA's exercise of discretion').

Conclusion

The court granted the petition in part, dismissed it in part, and remanded the case to the BIA for it to address the motion to reopen.

For the foregoing reasons, the petition for review is GRANTED in part and DISMISSED in part, and the case is REMANDED to the BIA for proceedings consistent with this opinion.

Who won?

The BIA prevailed in the case as the court found it lacked jurisdiction to review the certification decision, which was committed to the BIA's discretion.

The BIA prevailed in the case as the court found it lacked jurisdiction to review the certification decision, which was committed to the BIA's discretion.

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