Summary
The United States Court of Appeals for the Sixth Circuit denies a petition for review challenging the Board of Immigration Appeals' denial of a third motion to reopen removal proceedings. The petitioner argued she lacked proper notice of her in absentia hearing and that the immigration court lacked jurisdiction due to a delayed filing of the Notice to Appear. The court found both arguments without merit, noting the notice was statutorily sufficient and jurisdiction vested upon filing the charging document, and ultimately affirmed the BIA's decision.
Topics
Practice areas
Questions Presented
- Whether the BIA abused its discretion in denying the petitioner’s third motion to reopen based on lack of notice.
- Whether the BIA erred in declining to exercise sua sponte authority to reopen the removal proceedings.
- Whether the immigration court possessed jurisdiction over the removal proceedings despite DHS’s delayed filing of the NTA.
Holdings
- The petition is denied; the BIA’s denial of the motion to reopen was proper because the motion was untimely and numerically barred.
- The court lacks jurisdiction to review the BIA’s ultimate decision not to sua sponte reopen; the denial is unreviewable.
- The immigration court had jurisdiction because the NTA, once filed, is a charging document that vests jurisdiction regardless of its timeliness.
Key quotations
“The BIA abuses its discretion only when its determination was made ‘without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.’” (at 2)
“An NTA that does not contain the time and place of a hearing is insufficient under 8 U.S.C. § 1229(a) to trigger the stop‑time rule for purposes of cancellation‑of‑removal eligibility.” (at 7)
Factual background
Vargas‑Rodriguez entered the United States without inspection in 2005, received a Notice to Appear directing her to a February 9, 2006 hearing, failed to appear, and the immigration judge dismissed her case for failure to prosecute. The judge later scheduled hearings in 2009, which she also missed, leading to an in‑absentia removal order. She filed three motions to reopen, each denied by the BIA.
Procedural history
The immigration judge ordered removal in absentia in 2009. The BIA affirmed the IJ's dismissal and later denied three successive motions to reopen, citing the statutory and regulatory limits on reopening. The petitioner appealed the BIA's denial to the Sixth Circuit.