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The United States Supreme Court will hear arguments in Mata v. Holder on April 29th, 2015. 

Mata involves federal court authority to review decisions of the Board of Immigration Appeals (BIA) about whether to allow “equitable tolling” of the deadline to file a motion to reopen.  Mr. Mata’s previous counsel failed to file an appeal brief in his case, which likely constituted “ineffective assistance of counsel.” Mr. Mata sought reopening on that basis, just days after the 90 day reopening deadline; he asked the Board to excuse his slightly-late filing, arguing that the deadline should be “tolled” because of his prior lawyer’s ineffective assistance.  The BIA rejected his request, finding that he had not been diligent enough in protecting his rights; Mr. Mata appealed to the U.S. Court of Appeals.  The Court of Appeals for the Fifth Circuit, rather than addressing the merits of his claim, found that it did not have authority to review the BIA’s decisions on equitable tolling.  It reasoned that when the BIA tolls the deadline, it does so under the BIA’s authority to reopen matter “on its own motion” (also known as “sua sponte” reopening).  The Fifth Circuit has previously found that it cannot review the Board’s sua sponte decisions because, it says, such matters are entrusted to the exclusive discretion of the Board. 

In its amicus brief, the NIJC agreed with Mr. Mata – and the Solicitor General – that equitable tolling determinations are reviewable and not made under the BIA’s sua sponte authority.  If the Supreme Court agrees, that is enough to resolve the case.  NIJC’s amicus brief asks the Court to limit its holding to that issue, and argues that the Court ought not address sua sponte review more broadly.  (The Supreme Court has appointed an amicus to represent the views of the Fifth Circuit, since the Solicitor General declines to defend that position.)

However, since the Fifth Circuit based its approach on the proposition that review over sua sponte decisions is impermissible, it is possible that the Court will reach that broader issue.  NIJC’s amicus brief therefore lays out the case for judicial review in that context. 

NIJC’s amicus brief makes three main arguments.  First, we argue that Congress’ detailed jurisdictional rules for review of immigration matters are exclusive, meaning that courts should not be declining jurisdiction based on the general Administrative Procedures Act doctrine that federal courts should not review certain types of matters.  Second, we explain that sua sponte matters are not purely discretionary, but often involve legal and constitutional issues; we give several examples of such decisions, including reopening permitted for changes in law or where convictions have been vacated on constitutional or legal grounds.  Finally, we argue that judicial review has a longstanding and important tradition in the immigration context.

NIJC has represented individuals seeking review over sua sponte reopening denials in a variety of contexts, but most frequently where the underlying removal order was based on some kind of error.  Sua sponte reopening is often the only way that the Board can correct a past error; NIJC sees it as a crucial procedural tool, and think it is very important that federal courts be able to review those decisions. 

Our brief is available here.