In June, the Seventh Circuit dismissed the Petition for Review in Anaya-Aguilar v. Holder, which sought to challenge the BIA's denial of sua sponte reopening. 683 F.3d 369 (7th Cir. 2012). After circulation to the full en banc Court of Appeals, the panel overruled Munoz De Real v. Holder, 595 F.3d 747 (7th Cir. 2010). Petitioner subsequently sought rehearing, and NIJC filed an amicus brief in support. In its brief, NIJC pointed out that the Seventh Circuit had already rejected the use of the Administrative Procedures Act (APA) to supplement the jurisdiction-stripping provisions of the INA. Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir. 2006); Vahora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010). NIJC also argued that the sua sponte mechanism often raises purely legal issues, which are not discretionary and ought to be reviewable.
The Seventh Circuit denied rehearing, but its order denying rehearing pulled back somewhat from its earlier ruling, limiting the scope of the earlier decision. The Court stated that:
After the petitioner filed a petition for rehearing and rehearing en banc, the National Immigrant Justice Center filed an amicus curiae brief in which it expressed concern that our opinion might be read to render unreviewable all instances where the Board of Immigration Appeals refuses to exercise its sua sponte authority to reopen a case—including cases in which the Board has committed a legal or constitutional error. Such a reading would certainly conflict with our precedent. See, e.g., Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir. 2006). But our opinion should not be read that broadly; we do not mean to foreclose review of the Board’s denial of a motion to reopen sua sponte in cases where a petitioner has a plausible constitutional or legal claim that the Board misapplied a legal or constitutional standard. That is not the type of claim that the petitioner advanced in this case, so the Board’s decision is unreviewable.
The Court's new order is a clear victory for the reviewability of legal issues, even where they arise as a result of a sua sponte order. At the same time, the Seventh Circuit now joins the other federal circuits in treating the APA as a separate source of jurisdictional limitations in immigration cases. NIJC continues to believe that the Court's earlier logic in Cevilla and Vahora (which rejected that approach) was better-reasoned. It would be difficult for a noncitizen to show that the BIA had abused its decision in denying sua sponte reopening, except where the Board makes legal errors. However, there might be cases where it would matter. For instance, an asylum applicant might obtain evidence to confirm a claim for protection, but the Board still denies reopening, finding the noncitizen cannot be excused from the normal 90-day reopening deadline.
In sum, the new Anaya-Aguilar decision is a partial victory in a difficult subject area, and NIJC is pleased with that result. But the issue will not go away, and NIJC will continue to monitor for opportunities to positively influence the law in this area.